McClure v. Palmer

Filing 7

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
COREY LAMONTE MCCLURE,
Petitioner,
vs.
CARMEN PALMER,
Respondent.

Case No. 4:16-cv-13104
HON. TERRENCE G. BERG
OPINION AND ORDER
DENYING PETITION FOR
WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE
OF APPEALABILITY, AND
DENYING PERMISSION TO
APPEAL IN FORMA
PAUPERIS

This is a habeas case brought pursuant to 28 U.S.C. § 2254. The
petitioner, Michigan state prisoner Corey Lamont McClure, challenges
his convictions in the Wayne County Circuit Court of kidnapping, Mich.
Comp. Laws § 750.349(1)(c), two counts of first-degree criminal sexual
conduct, Mich. Comp. Laws § 750.520b(1)(e), and three counts of armed
robbery, Mich. Comp. Laws § 750.529. Petition at 2, ECF No. 1, PageID.2.
Petitioner is serving a term of fourteen years, three months, to twentyfive years. Id. The petition raises one claim of ineffective assistance of
trial counsel under two theories: that counsel was ineffective during plea
negotiations and for failing to file a motion to suppress evidence. Id. at 3.

For the reasons stated below, the Petition will be DENIED. The
Court also DENIES Petitioner a certificate of appealability and
permission to proceed on appeal in forma pauperis.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was convicted in Wayne County Circuit Court following
a jury trial of kidnapping, two counts of first-degree criminal sexual
conduct, three counts of armed robbery, and three counts of felonious
assault.1 The circumstances leading to his convictions began with
Petitioner calling for in-home escort services.
Bellayna Wells came to see Petitioner at a house on Portlance
Street in Detroit, after he called in response to her ad in Backpages.com.
7/15/13 Trial Tr. at 162, 250, ECF No. 5-6, PageID.374, 462. She was
driven to the home by two friends who stayed in the car outside the house.
Id. at 164, PageID.376. On her arrival, Petitioner brandished a gun at
her and ordered her to the basement. Id. at 169, PageID.381. He ordered
her to strip and took the money she emptied from her pockets. Id. at 173–
74, 179, PageID.385–86, 391. Petitioner demanded oral sex and she
complied. Id. at 175–76, PageID.387–88. He pointed a gun at her head
while he penetrated her vaginally with his penis. Id. at 176, PageID.388.
Petitioner and Wells then went outside. When they approached her
friends’ car, Petitioner pointed the gun at them and demanded money.
The Michigan Court of Appeals reversed Petitioner’s convictions on three counts of
felonious assault, Mich. Comp. Laws § 750.82(1). People v. McClure, No. 317995, 2015
WL 302683, at *1 (Mich. Ct. App. Jan. 22, 2015).
1

2

Id. at 182, PageID.394. He threatened to take the car and took the keys
out of the ignition, but then returned the keys and told the women to
leave. Id. at 184, PageID.396. Before they left, Petitioner took phones
from both Wells and one of her friends. Id. at 183, PageID.395. The
women reported the incident to the police. Id. at 186, PageID.398.
Detroit Police Officer Robert Kane was the officer in charge of
Petitioner’s case. 7/17/13 Trial Tr. at 65, ECF No. 5-8, PageID.655. Wells
and the other women identified Petitioner from a photo array. Id. at 81,
PageID.671. Kane then sought the assistance of the “special operations
division” of the Detroit Police Department for their aid in arresting
Petitioner. Id. at 83, 86, PageID.673, 676. Kane discovered that
Petitioner was on probation. Id. at 87, PageID.677.
Petitioner’s assigned probation officer was Marcus Robinson.
Robinson accompanied Kane and special operations officers to a house on
Kenmore Street in Detroit, where they determined Petitioner was.
7/16/13 Trial Tr. at 23–24, ECF No. 5-7, PageID.501–02; 7/17/13 Trial Tr.
at 87, ECF No. 5-8, PageID.677. Robinson told the young woman who
answered the door that they were there for a “home check”—typical for
probationers. 7/16/13 Trial Tr. at 25, ECF No. 5-7, PageID.503. The
officers walked through the house but left when they were told Petitioner
was not home. Id. at 26, PageID.504. Five or ten minutes later, the
officers returned to the house and found Petitioner hiding under a
mattress in an upstairs bedroom. Id. at 27, PageID.505.
3

During their search for Petitioner, but before they located him
under the mattress, Robinson found what he thought was a firearm on
top of the refrigerator in the kitchen. Id. at 28, PageID.506. He
determined it was not a real gun, but a “facsimile.” Id. at 29, PageID.507;
Trial Tr. 7/17/13 at 91, ECF No. 5-8, PageID.681. Petitioner was arrested
by the Detroit Police Department. Id. at 36, PageID.514.
Petitioner was not arrested pursuant to an arrest warrant, nor did
the officers have a search warrant for the residence. Rather, this was a
“home check” performed by probation officer Robinson pursuant to the
rules of probation. Trial Tr. 7/17/13 at 119, ECF No. 5-8, PageID.709.
Although there were no warrants for the search or the arrest, there was
no need to obtain one. 7/16/13 Trial Tr. at 31, ECF No. 5-7, PageID.509.
He “recovered th[e] firearm under the purview of a home check” and
turned it over to the Detroit Police Department. Id. at 36, 38, PageID.514,
516.
During cross-examination of Robinson, Petitioner’s defense counsel
tried to establish that the search of the Kenmore house was illegal, but
the court sustained the prosecution’s objection. 7/16/13 Trial Tr. at 38-39,
ECF No. 5-7, PageID.516–17. Trial counsel did not raise the issue again.
See 7/16/13 Trial Tr., ECF No. 5-7; 7/17/13 Trial Tr. ECF No. 5-8; 7/18/13
Trial Tr., ECF 5-9. During trial, the court dismissed the felony firearm
charge against Petitioner. Trial Tr. 7/17/13 at 132, ECF No. 5-8,
PageID.722. However, the court also denied trial counsel’s motion for a
4

directed verdict on the three charges of felonious assault (also known as
“assault with a dangerous weapon”). Trial Tr. 7/17/13 at 123, 128, 135,
ECF No. 5-8, PageID.713, 718, 725. Petitioner was convicted on all
counts. 7/18/13 Trial Tr. at 16-17, ECF No. 5-9, PageID.810-11.
Petitioner appealed his convictions to the Michigan Court of
Appeals, raising the following three grounds for relief: (1) His convictions
for assault with a dangerous weapon must be vacated because the
firearm used in the offense was not real, (2) trial counsel was
constitutionally ineffective during plea negotiations, and (3) the
warrantless search of his residence by the probation officer violated the
Fourth Amendment and the weapon found should have been suppressed.
Simultaneously with his brief on appeal, Petitioner filed two
motions to remand through appellate counsel. The first sought a Ginther2
hearing to establish trial counsel’s ineffectiveness for his failure to have
the

felonious

assault

charges

dismissed

during

pre-trial

plea

negotiations. Mich. Ct. App. Record at 67, ECF No. 5-11, PageID.922.
Petitioner’s second motion sought a remand for an evidentiary hearing
“For Purposes of Fourth Amendment Analysis,” to establish the
warrantless search and seizure was unconstitutional. It stated that trial
counsel was ineffective for failing to move to suppress evidence obtained
A “Ginther hearing” permits a defendant “to further develop the record as it
pertain[s] to her ineffective assistance of counsel claims.” Hargrave-Thomas v.
Yukins, 450 F. Supp. 2d 711, 714 (E.D. Mich. 2006) (citing People v. Ginther, 212
N.W.2d 922 (1973)).

2

5

during that search. Id. at 61, PageID.916. The Court of Appeals denied
both motions. Id. at 71, PageID.926. Petitioner did not appeal the denials.
The Court of Appeals denied Petitioner relief on his ineffective
assistance of counsel and Fourth Amendment claims but vacated the
felonious assault convictions and remanded for re-sentencing “if
necessary.” People v. McClure, No. 317995, 2015 WL 302683, at *6 (Mich.
Ct. App. Jan. 22, 2015). Petitioner’s pro per application for leave to appeal
to the Michigan Supreme Court raised the same three issues that were
before the court below. See Mich. Sup. Ct. Record, ECF No. 5-12. Again,
the denial of the motions to remand was not included in Petitioner’s
application for leave. Id.
The Michigan Supreme Court denied leave to appeal in a standard
order, because it was “not persuaded that the questions presented should
be reviewed by this Court.” People v. McClure, 497 Mich. 1031 (2015).
Petitioner’s convictions were final on August 26, 2015. He filed this
petition on August 26, 2016.
II.

LEGAL STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), sets forth
the standard of review that federal courts must use when considering
habeas petitions brought by prisoners challenging their state court
convictions. The AEDPA provides in relevant part:

6

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).
Relief is barred under this section unless the state court
adjudication was “contrary to” or resulted in an “unreasonable
application of” clearly established law, “as determined by the Supreme
Court of the United States” at the time the state court renders its
decision. 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362,
412 (2000); Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that
the Supreme Court “has held on numerous occasions that it is not ‘an
unreasonable application of clearly established Federal law’ for a state
court to decline to apply a specific legal rule that has not been squarely
established by this Court”) (citations omitted).
“A state court’s decision is ‘contrary to’ . . . clearly established law
if it ‘applies a rule that contradicts the governing law set forth in
[Supreme Court cases]’ or if it ‘confronts a set of facts that are materially
7

indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [this] precedent.”‘ Mitchell
v. Esparza, 540 U.S. 12, 15–16 (2003) (per curiam) (quoting Williams, 529
U.S. at 405–06); see also Bell v. Cone, 535 U.S. 685, 694 (2002). “[T]he
‘unreasonable application’ prong of the statute permits a federal habeas
court to ‘grant the writ if the state court identifies the correct governing
legal principle from [the Supreme] Court but unreasonably applies that
principle to the facts’ of a petitioner’s case.” Wiggins v. Smith, 539 U.S.
510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535
U.S. at 694. “[A]n ‘unreasonable application of’ those holdings must be
objectively unreasonable, not merely wrong; even clear error will not
suffice.” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015); see also Wiggins,
539 U.S. at 520–21 (“the state court’s decision must have been more than
incorrect or erroneous”) (citations omitted).
“AEDPA thus imposes a ‘highly deferential standard for evaluating
state-court rulings,’ and ‘demands that state-court decisions be given the
benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting
Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537
U.S. 19, 24 (2002) (per curiam)). A state court’s determination that a
claim lacks merit “precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized
8

“that even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S.
63, 75 (2003)). 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. Section 2254(d) thus “reflects the view that habeas
corpus is a guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction through
appeal . . .” Id.
A state court’s factual determinations are presumed correct on
federal habeas review. See 28 U.S.C. § 2254(e)(1). Accordingly, habeas
review is “limited to the record that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). A habeas petitioner may rebut this
presumption only with clear and convincing evidence. Warren v. Smith,
161 F.3d 358, 360–61 (6th Cir. 1998).
III. DISCUSSION
The petition before the Court raises a single claim of ineffective
assistance of counsel under two theories. First, Petitioner argues that
trial counsel was ineffective during plea bargaining because he failed to
move for a reduction in Petitioner’s charges, which he believes would
have resulted in greater negotiating leverage. Second, Petitioner
9

contends counsel was ineffective in failing to object to the Fourth
Amendment violation based on the warrantless search of his home and
seeking to suppress the weapon found.
Respondent argues that trial counsel was effective during plea
negotiations, as demonstrated by a very favorable final offer which
Petitioner rejected. Respondent also argues that Petitioner’s second
argument not only lacks merit but is procedurally defaulted, as Petitioner
did not raise this specific issue in the state courts.
A. Plea negotiations
Claims for habeas relief because of ineffective assistance of counsel
are evaluated under a “doubly deferential” standard. Abby v. Howe, 742
F.3d 221, 226 (6th Cir. 2014) (citing Burt v. Titlow, 571 U.S. 12, 15
(2013)). The first layer is the familiar deficient performance plus
prejudice standard of Strickland v. Washington, 466 U.S. 668, 687–88
(1984). That is, a habeas petitioner must first show “that counsel’s
representation fell below an objective standard of reasonableness,” and
“there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Lafler v.
Cooper, 566 U.S. 156, 163 (2012) (citations omitted). “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Williams v. Lafler, 494 F. App’x 526, 532 (6th Cir. 2012) (per
curiam) (quoting Strickland, 466 U.S. at 694). Strickland requires a
“strong presumption that counsel’s conduct [fell] within the wide range
10

of reasonable professional assistance[,]” Abby, 742 F.3d at 226 (citing
Strickland, 466 U.S. at 689), and that “under the circumstances, the
challenged action ‘might be considered sound trial strategy.’” Bell, 535
U.S. at 698 (citing Strickland, 466 U.S. at 689).
AEDPA provides the second layer of deference, under which the
Court may “examine only whether the state court was reasonable in its
determination that counsel’s performance was adequate.” Abby, 742 F.3d
at 226 (citing Burt, 134 S. Ct. at 18). “‘The pivotal question is whether
the

state

court’s

application

of

the

Strickland

standard

was

unreasonable,’ which ‘is different from asking whether defense counsel’s
performance fell below Strickland’s standard.’” Harrington, 562 U.S. at
101.
The state court of appeals’ determination that Petitioner received
effective assistance of counsel was not unreasonable. Before trial, he
faced one count of kidnapping, two counts of criminal sexual conduct, first
degree, three counts each of armed robbery and felonious assault, and
one count of felony firearm. Trial Tr. 7/15/13 at 7, ECF No. 5-6,
PageID.219. Three of those charges carried possible sentences of “life or
for any term of years.” Mich. Comp. Laws §§ 750.349(3) (kidnapping),
750.520b(2)(a) (criminal sexual conduct, first degree), 750.529 (armed
robbery). In addition, the prosecution asserted it would seek consecutive
sentencing. Id. at 4, PageID.216.

11

Petitioner received two plea offers. In the first offer, if he pled guilty
to criminal sexual conduct, third degree, and felony firearm, all other
counts were dismissed with a sentence agreement of five to sixteen years
plus the consecutive two-year term for the firearm charge. Trial Tr.
7/15/13 at 3, ECF No. 5-6, PageID.215. In the second offer, Petitioner
could plead guilty only to the charge of criminal sexual conduct, third
degree, in exchange for a term of six to fifteen years and no felony firearm
enhancement. Trial Tr. 7/15/13 at 4, ECF No. 5-6, PageID.216. Petitioner
turned down both offers and went to trial. Id.
Petitioner was convicted on all charges, Ct. App. Rec. at 16, ECF 511, PageID.871, except the felony firearm count which was dismissed.
Sent. Tr. at 4-5, ECF No. 510, PageID.823–24. On the kidnapping charge,
he was sentenced to roughly fourteen to twenty-five years (171–300
months), and on the criminal sexual conduct charges, he was sentenced
to roughly eleven to twenty years (135–240 months). He also received
lesser terms for the armed robbery and felonious assault counts.
On this record, the state court of appeals’ finding that Petitioner
had received effective assistance of counsel was reasonable. Counsel had
effectively negotiated down from ten counts against Petitioner to a single
count, with a sentence agreement containing a prison term that was
considerably shorter than Petitioner received after conviction.
Petitioner is thus unable to demonstrate that trial counsel’s
performance was objectively unreasonable. Nor can he can demonstrate
12

any prejudice resulting from his counsel’s performance. To demonstrate
prejudice, Petitioner must show “a reasonable probability” of a different
outcome, absent counsel’s errors. Lafler, 566 U.S. at 163. This requires a
“substantial” likelihood, not just a “conceivable” one. Harrington, 562
U.S. at 112 (citing Strickland, at 693.); see also Baze v. Parker, 371 F.3d
310, 322 (6th Cir. 2004) (“[S]peculation is insufficient to make out a
successful claim of prejudice.”).
Lafler provides more specific guidance where, as here, a petitioner
claims that a favorable plea offer was not made because of counsel’s
alleged error in failing to move to reduce certain charges:
In these circumstances a defendant must show
that but for the ineffective advice of counsel there
is a reasonable probability that the plea offer
would have been presented to the court (i.e., that
the defendant would have accepted the plea and the
prosecution would not have withdrawn it in light
of intervening circumstances), that the court
would have accepted its terms, and that the
conviction or sentence, or both, under the offer’s
terms would have been less severe than under the
judgment and sentence that in fact were imposed.
Id. at 163–64 (emphasis added).
Here, Petitioner makes no attempt to establish a reasonable
probability that a different and better offer would have been forthcoming
if counsel sought to have the three felonious assault charges dismissed
before trial. He instead argues that he “will never know” if the
prosecution would have made different offer because his counsel never
13

moved to have the charges reduced. Petition at 18, ECF No. 1, PageID.18.
He also states that he “may have accepted a better offer. It is all guess
work.” Id. (emphasis added). Prejudice cannot be established by
speculation, especially not when Petitioner himself cannot say whether
he would have accepted a different plea offer.3
In addition, Petitioner’s argument extends beyond Lafler’s issue of
objectively substandard advice to the assertion that trial counsel was
ineffective for his failure to obtain a better bargaining position through
motion practice. But attorneys cannot be found ineffective for not filing a
futile motion or not “rais[ing] . . . meritless arguments.” Mapes v. Coyle,
171 F.3d 408, 427 (6th Cir. 1999). Here, the trial court denied counsel’s
motion for directed verdict on the same counts Petitioner would have
counsel try to dismiss before trial, indicating that a pre-trial attempt
would likely have failed.
For the same reasons explained above, Petitioner cannot establish
prejudice for counsel’s failure to seek dismissal. He cannot say what the
better offer might have been, but for the counts that should have been

It is also noteworthy that both plea offers that were extended would have dropped
the three felonious assault charges, indicating that the prosecution was willing to
forego those charges (even if no motion had been made to reduce the charges).
Consequently, it is not clear why moving to dismiss those charges would have given
Petitioner any additional leverage in the negotiations—the prosecution was already
willing to drop those charges in exchange for a plea and it is not clear why a court’s
dismissing them would have weakened the prosecution’s hand regarding the strength
of its case on the remaining charges.
3

14

dismissed, and does not even state that he would have accepted that
better offer.
The state court denied relief on this claim, reasoning that trial
counsel’s performance was not deficient because he obtained “very
generous” plea offers and because he cannot be deemed ineffective for
failing to raise futile motions. McClure, No. 317995, 2015 WL 302683, at
*4. Further, the court said Petitioner could not establish prejudice
because he declined plea offers that did not include felony firearm and
felonious assault charges that were dismissed or overturned on appeal.
The state courts were not unreasonable to find that Petitioner did not
receive constitutionally ineffective assistance of counsel.
B. Failure to suppress evidence found in the warrantless
search
Petitioner’s second theory of ineffective assistance is that trial
counsel was ineffective for not moving for suppression of the weapon
taken into evidence during a warrantless search of his home. Respondent
argues that the claim is meritless and that it was procedurally defaulted
as it was not raised before the state court.
The state court found the search and seizure constitutional but did
not address whether counsel was ineffective in relation to the Fourth
Amendment issue. McClure, No. 317995, 2015 WL 302683, at *5. The
court applied United State Supreme Court precedent which held that
15

“the government may execute a warrantless search of a probationer’s
home upon a showing of reasonable suspicion.” Id. (citing United States
v. Knights, 534 U.S. 112, 118 (2001)). It found adequate basis for
reasonable suspicion in testimony indicating Petitioner “was a suspect in
a crime.” Id. at *6.
“[A] petitioner may procedurally default a claim by failing to raise
a claim in state court, and pursue that claim through the state’s ordinary
appellate review procedures.” Carter v. Mitchell, 693 F.3d 555, 563–64
(6th Cir. 2012) (citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir.
2006)). “To avoid procedurally defaulting a claim, the prisoner must have
exhausted his or her remedies in state court.” Id. (citing O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b)(1)(A)). Exhaustion
requires “the state courts [have] a full and fair opportunity to resolve
federal constitutional claims before they are presented to the federal
court.” Woods v. Booker, 450 F. App’x 480, 488 (6th Cir. 2011) (citing Rose
v. Lundy, 455 U.S. 509, 518 (1982)).
“To fairly present a claim to a state court a petitioner must assert
both the legal and factual basis for his or her claim.” Carter, 693 F.3d at
564 (citing Williams, 460 F.3d at 806; Clinkscale v. Carter, 375 F.3d 430,
437 (6th Cir. 2004)). “[A] petitioner must present enough information to
allow the state courts to apply controlling legal principles to the facts
bearing upon his constitutional claim.” Woods, 450 F. App’x at 488 (citing
Picard v. Connor, 404 U.S. 270, 276–77 (1971)).
16

In addition, “the petitioner’s federal habeas petition must be based
on the same theory presented in state court and cannot be based on a
wholly separate or distinct theory.” Carter v. Mitchell, 693 F.3d at 568
(citing Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998)). In Wong, the
petitioner asserted constitutionally ineffective assistance of counsel, but
her theory to support ineffectiveness shifted between state court
proceedings (failure to pursue an insanity defense) and federal court
(failure to investigate an alternate expert). Id. (citing Wong, 142 F.3d at
319, 321). Wong held that the latter theory was procedurally defaulted
because it had not been presented to the state court. Id. (citing Wong, 142
F.3d at 322).
Exhaustion demands habeas petitions conform to state procedural
requirements: “[C]laims that have not been raised in compliance with
state procedural rules are barred in federal court.” Hill v. Mitchell, 842
F.3d 910, 951–52 (6th Cir. 2016) (citing Wainwright v. Sykes, 433 U.S.
72, 86–87 (1977); Coleman v. Thompson, 501 U.S. 722, 731 (1991)). For
instance, the Sixth Circuit has explained that a motion to remand could
not support exhaustion because that argument “ignores the procedural
norms of the Michigan Court of Appeals . . . [that] it will review only those
claims ‘stated in the questions presented section of [a] defendant’s brief
[or] suggested by the stated issues.’” Woods, 450 F. App’x at 489 (citing
People v. Ewing, 2005 WL 658835 at *4 (Mich. Ct. App. 2005)).

17

Here, the issues Petitioner’s brief presented on appeal in the state
court were the constitutionally ineffective performance of trial counsel
during plea negotiations and the substantive question of whether the
warrantless search of his residence by the probation officer violated the
Fourth Amendment. Both issues were “fairly presented” to the Michigan
Court of Appeals, the court addressed them both, and they are thus
exhausted.
By contrast, Petitioner’s second theory of ineffective assistance,
counsel’s failure to move to suppress evidence, was not raised in any of
the questions presented in his brief before the state court. The issue only
appears briefly as factual background in his motion to remand for an
evidentiary hearing. See Ct. App. Rec. at 61, ECF 5-11, PageID.916. This
pleading cannot provide a basis for habeas relief; the motion concludes
that

“police

circumvented

the

Fourth

Amendment’s

warrant

requirement” and requests an evidentiary hearing to further develop the
record if the court requires. Id. at 62, PageID.917. The motion did not
request the state court find counsel ineffective on this issue, nor did it
request a remand for an evidentiary hearing to establish his
ineffectiveness.
The Sixth Circuit has consistently held that raising an ineffective
assistance claim before the state courts does not exhaust the
constitutional claim underlying the issue of counsel’s performance. White
v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005). In White, the petitioner
18

sought habeas relief on the grounds “that the prosecution impermissibly
used its peremptory challenges to purposely exclude women from the jury
and that he was denied a fundamentally fair trial as a result pursuant to
Batson v. Kentucky, 476 U.S. 79 (1986).” Id. at 525.
The court did not disagree with the district court’s finding that the
petitioner had properly exhausted his ineffective assistance claim over
counsel’s failure to raise a Batson challenge. Id. at 526. However, it found
the Batson claim itself procedurally defaulted, “because it had not been
raised in any state court.” Id. The court held that the two grounds for
relief, the constitutional violation and the related ineffective assistance
claim, were “analytically distinct.” Id. Thus, the latter claim “[could] not
function to preserve the preemptory challenge argument.” Id. (citing
Prather v. Reese, 822 F.2d 1418, 1421 (6th Cir. 1987)); accord, Gross v.
Warden, Lebanon Corr. Inst., 426 F. App’x 349, 359 (6th Cir. 2011); Davie
v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008).
The Eastern District of Michigan has repeatedly held that raising
the underlying constitutional violation in the state courts fails to exhaust
a claim of ineffective assistance of counsel related to that violation. See
Smith v. Woods, No. 2:12-CV-14926, 2012 WL 5950369, at *3 (E.D. Mich.
Nov. 28, 2012) (citing White, 431 F.3d at 526) (challenging the validity of
a guilty plea did not exhaust the related ineffectiveness claim); Phillips
v. Burt, No. 2:08-13032, 2009 WL 646651, at *3 (E.D. Mich. Mar. 10,
2009) (citing White, 431 F.3d at 526) (petitioner exhausted an
19

entrapment defense but not the ineffective assistance claim); Haynes v.
Birkett, No. 2:07-CV-14520-DT, 2008 WL 2858676, at *4 (E.D. Mich. July
23, 2008) (citing White, 431 F.3d at 526) (raising a claim that the statute
of limitations precluded prosecution did not exhaust the related
ineffectiveness claim). Accordingly, Petitioner’s claim in the state courts
of a Fourth Amendment violation could not preserve his ineffectiveness
of counsel claim.
Even when a habeas claim is procedurally defaulted, federal courts
may choose to address the merits of that claim. See Hudson v. Jones, 351
F.3d 212, 215–16 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S.
518, 525 (1997); Nobles v. Johnson, 127 F.3d 409, 423-24 (5th Cir.1997);
see also 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State.”). And on the
merits, Petitioner’s claim still fails.
The Michigan Court of Appeals cited United States v. Knights, 534
U.S. 112, the appropriate precedent to evaluate a warrantless search of
a probationer’s home. The Knights Court held that “[w]hen an officer has
reasonable suspicion that a probationer subject to a search condition is
engaged in criminal activity, there is enough likelihood that criminal
conduct is occurring that an intrusion on the probationer’s significantly
diminished privacy interests is reasonable” and a warrant requirement

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is unnecessary. Id. at 121 (citing Illinois v. McArthur, 531 U.S. 326, 330
(2001)).
Here, the probation officer knew that Petitioner was a suspect in a
“new crime.” 7/16/13 Trial Tr. at 31, ECF No. 5-7, PageID.509. And as a
probationer, Petitioner was subject to “home check[s],” which the
probation officer deemed “commonplace” (id. at 25, PageID.503),
reflecting Knights’ “search condition.” Knights, 531 U.S. at 121.
Accordingly, the state court was not unreasonable to find that the
warrantless search that yielded a gun did not violate Petitioner’s Fourth
Amendment rights. Petitioner’s trial counsel cannot be ineffective for
failing to challenge that search. A motion on that issue would have been
a “meritless argument” under Mapes, 171 F.3d at 427.

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IV. CONCLUSION
Accordingly, Petitioner’s petition for a writ of habeas corpus is
DENIED WITH PREJUDICE. For the same reasons that the Court
denies the petition, the Court discerns no good-faith basis for an appeal.
The Court therefore CERTIFIES that any appeal from this decision
could not be taken in good faith and DENIES Petitioner a certificate of
appealability and leave to appeal this decision in forma pauperis. See 28
U.S.C. § 1915(a)(3).

SO ORDERED.

Dated: August 1, 2019

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served on August 1, 2019.
s/A. Chubb
Case Manager

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