Sears v. MacLaren
Filing
11
OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Proceed in Forma Pauperis on Appeal. Signed by District Judge Terrence G. Berg. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN SEARS, #898757,
Petitioner,
Case No. 17-10304
Hon. Terrence G. Berg
v.
DUNCAN MACLAREN,
Respondent.
OPINION AND ORDER DENYING THE PETITION FOR A
WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
I.
Introduction
This is a petition for writ of habeas corpus brought pursuant to
28 U.S.C. § 2254. Michigan prisoner Kevin Sears (“Petitioner”) was
convicted of conspiracy to commit first-degree premeditated murder, MICH. COMP. LAWS §§ 750.157a, 750.316(a), and solicitation of
murder, MICH. COMP. LAWS § 750.157b(2), following a jury trial in
the Macomb County Circuit Court. He was sentenced to concurrent
terms of life imprisonment and 12 to 23 years imprisonment in
2014. In his pro se petition, he raises claims concerning the trial
court’s reference to jurors by their numbers instead of names and
the trial court’s exclusion of a witness’s prior inconsistent statement. For the reasons set forth, the Court denies the petition for a
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writ of habeas corpus. The Court also denies a certificate of appealability and denies Petitioner leave to proceed in forma pauperis on
appeal.
II.
Facts and Procedural History
Petitioner’s convictions arise from his participation in a plot to
kill his estranged wife before their divorce became final. The Court
adopts the following summary of the trial testimony, provided by
the prosecutor on direct appeal, to the extent that it is consistent
with the record:
In October of 2010, Mallorie Wilson-Strat (“WilsonStrat”) met Kevin Sears (“Sears”). (Tr. 12-4-13, 140).
Wilson-Strat met Sears through the involvement of one
of her friends and Sears’ sister, Christina Sears (“Christina”). (Tr. 12-4-13, 142–143). At that time, Sears was
married to Jessica Sears (“Jessica”), with whom he had
three children. (Tr. 12-4-13, 89–92). Wilson-Strat and
Sears, who was in the process of divorcing Jessica, began
a romantic relationship. (Tr. 12-4-13, 89–92, 143–145).
In late December of 2010 or early January of 2011, Wilson-Strat, through separate conversations with Sears
and Christina, learned that Sears and Christina
“wanted to have Jessica killed.” (Tr. 12-4-13, 147). During this period, Sears told Wilson-Strat at the Comfort
Suites in Warren where Christina worked that he was
going to kill Jessica himself. (Tr. 12-4-13, 147–148). Ultimately, Sears asked Wilson-Strat to help him kill Jessica. (Tr. 12-5-13, 73). Soon thereafter, Christina asked
Wilson-Strat during a telephone conversation if WilsonStrat knew “anyone” who could kill Jessica. (Tr. 12-4-13,
148–149). Wilson-Strat believed that Christina was “serious.” (Tr. 12-4-13, 149).
2
Wilson-Strat contacted her friend, April Evelyn
(“April”). (Tr. 12-4-13, 149). She asked April if April
“knew anybody that could take care of somebody.” (Tr.
12-4-13, 149). April asked Wilson-Strat what WilsonStrat meant “by take care of” somebody. (Tr. 12-4-13,
149). Wilson-Strat clarified that she meant “to kill
somebody.” (Tr. 12-4-13, 149). April asked her boyfriend,
David Clark (“Clark”), and Clark stated that “he could
do it.” (Tr. 12-4-13, 149–150). At one point, Wilson-Strat
spoke to Clark directly. (Tr. 12-4-13,150). Clark asked
how much “they were willing to pay.” (Tr. 12-4-13, 150).
Wilson-Strat had various subsequent face-to-face discussions with Sears, Christina, Clark, and Clark’s
friend, Jordan Powell (“Powell”). (Tr. 12-4-13, 150–153).
Although Sears and Wilson-Strat communicated extensively by text message during their relationship, they
did not send text messages regarding the murder conspiracy. (Tr. 12-4-13,151–152). Sears told Wilson-Strat
“[t]o not text about it because if, in fact, Jessica did end
up dead, [Sears] would be the first person that they
looked at.” (Tr. 12-4-13, 152).
Christina wanted to meet Clark. (Tr. 12-4-13, 153–154).
Wilson-Strat, Christina, and Clark met at the Comfort
Suites in Warren where Christina was working. (Tr. 124-13, 155). Later that day, Wilson-Strat drove Clark out
to the Sears’ residence in Armada Township “[s]o he
could see the surroundings of their house.” (Tr. 12-4-13,
155).
On a subsequent day, Wilson-Strat and Clark met with
Powell at April’s house regarding the plot “to murder
Jessica Sears.” (Tr. 12-4-13, 155–158). Clark and Powell
“decided to take knives with them.” (Tr. 12-4-13, 156).
Neither Clark nor Powell had a vehicle so Wilson-Strat
“was going to drive them.” (Tr. 12-4-13, 156–157). Clark
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“wanted some money up-front” and “then when he completed the job he was going to get the rest on the backend.” (Tr. 12-4-13, 158). Wilson-Strat had heard Sears
and Christina talk about the fact that Sears was beneficiary on an insurance policy on Jessica’s life. (Tr. 12-413, 158-159). Sears gave Wilson-Strat $1,000.00 “to give
to [Clark] for his front-end payment.” (Tr. 12-4-13, 159–
160).
A few weeks later, on the evening of March 23, 2011,
Wilson-Strat drove Clark and Powell to the Sears’
house. (Tr. 12-4-13, 158, 160). Wilson-Strat knew that
Jessica would be staying at the Sears’ house that night
because of the family’s parenting time arrangement. (Tr.
12-4-13, 161–162). Clark and Powell were carrying
knives. (Tr. 12-4-13, 161). Kevin had informed WilsonStrat that “there was a window open in the basement.”
(Tr. 12-4-13, 161). Wilson-Strat told Clark and Powell
“to check all the windows on the basement level so that
it didn’t appear that they knew which window was the
one that was open.” (Tr. 12-4-13, 161). Wilson-Strat told
them to do this so that the crime would appear like “a
regular break-in.” (Tr. 12-4-13, 161). She advised them
“where [Jessica’s] bedroom was” located. (Tr. 12-4-13,
161). Wilson-Strat “let [Clark and Powell] out of the car,
they got out and [she] drove up and down the street
waiting from them to come out.” (Tr. 12-4-13, 161).
Clark and Powell ultimately returned to Wilson-Strat’s
vehicle and climbed inside carrying Jessica’s purse. (Tr.
12-4-13, 162). Wilson-Strat “wanted them to return the
purse.” (Tr. 12-4-13, 162–163). They refused to do so.
(Tr. 12-4-13, 163). Clark and Powell told Wilson-Strat
that “they couldn’t get the bedroom door open” because
the knob “just kept turning.” (Tr. 12-4-13, 163). WilsonStrat drove both Clark and Powell to their homes. (Tr.
12-4-13, 164).
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In March of 2011, Jessica resided on Capac Road in Armada Township in the area of 34 Mile Road and Romeo
Plank. (Tr. 12-4-13, 90–91). As indicated, she was in the
middle of a divorce from Sears. (Tr. 12-4-13, 91). As part
of a nesting arrangement, Jessica lived during the week
in the house with her three young children and Sears
lived with the children in the house during the weekend.
(Tr. 12-4-13, 92). On the morning of March 23, 2011, Jessica awoke to discover that her “purse was missing.” (Tr.
12-4-13, 93). She kept her purse hanging on the banister to the stairs that go down into her basement. (Tr. 124-13, 102). There was snow outside and she noticed that
there were “footprints going around [her] house.” (Tr.
12-4-13, 93–94). Jessica called the police. (Tr. 12-4-13,
94).
That day, Michigan State Police (“MSP”) Trooper Jeffrey
Juneac (“Trooper Juneac”) was on road patrol when he
was dispatched to the reported break-in at Jessica’s
house in northern Macomb County. (Tr. 12-4-13, 65–67).
Arriving at the house on Capac Road, Trooper Juneac
interviewed Jessica, who reported a purse missing from
inside the house. (Tr. 12-4-13, 67, 76).
Trooper Juneac viewed “[two sets of] foot impressions in
the snow . . . going around her residence to a window on
the . . . back side of her home where the foot impressions
went up to a window.” (Tr. 12-4-13, 67–68, 71–73).
Trooper Juneac saw the screen from a basement window
on the ground. (Tr. 12-4-13, 72–73). The basement window appeared to Trooper Juneac to be the “entry point”
for the break-in. (Tr. 12-4-13, 68, 71–72). The two sets of
footprints in the snow led up to the suspected entry
point to the house and continued back away from the
residence. (Tr. 12-4-13, 72–74).
Jessica told Trooper Juneac that she had been home the
previous evening and that her purse was missing from a
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stairway inside the house. (Tr. 12-4-13, 67-68, 76).
Trooper Juneac took photographs of the exterior of the
house. (Tr. 12-4-13, 68–75).
This same day, Wilson-Strat advised both Sears and
Christina that this attempt on Jessica’s life had been
unsuccessful. (Tr. 12-4-13, 164). Sears was upset because “Jessica called the police because someone was in
their house.” (Tr. 12-4-13, 165). He was mad because
“the police now were involved” and “alarms were going
to be put in their house.” (Tr. 12-4-13, 165).
Subsequently, Wilson-Strat “asked another friend of
[hers] if he knew anybody that could murder someone.”
(Tr. 12-4-13, 165–166). Wilson-Strat’s friend provided
her with John Walker’s name and telephone number.
(Tr. 12-4-13, 165–166; Tr. 12-6-13, 13-14). John Walker
turned out to be Macomb County Sheriff’s Office Sergeant John Glass (“Sergeant Glass”), who was working
undercover for the County of Macomb Enforcement
Team (“COMET”). (Tr. 12-4-13, 166, 172; Tr. 12-6-13,
12–14).
Exchanging text messages, Wilson-Strat and Sergeant
Glass set up a face-to-face meeting for April 7, 2011, outside the Farm Fresh Market in Oak Park were WilsonStrat was employed. (Tr. 12-4-13, 172; Tr. 12-6-13, 14–
15, 18). Sergeant Glass told Wilson-Strat that he “could
do it as long as [they] were sure that that’s what [they]
wanted.” (Tr. 12-4-13, 172–173). Wilson-Strat told Sergeant Glass that they were “serious” about it. (Tr. 12-413, 173). Wilson-Strat informed Sergeant Glass that
Jessica was the target of the murder plot and gave him
her address. (Tr. 12-4-13, 173–174; Tr. 12-6-13, 16).
At the meeting, Wilson-Strat advised Sergeant Glass,
who wore an audio wire, she and Sears wanted Jessica
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murdered because Jessica was abusing the Sears’ children. (Tr. 12-4-13, 174; Tr. 12-6-13, 19–30). Sears and
Christina had both told Wilson-Strat “that there was
abuse done to the children” and that Jessica was perpetrating this abuse. (Tr. 12-4-13, 175). Sears had showed
Wilson-Strat photographs of his daughter with marks
on her arm and stated that Jessica had inflicted these
injuries with a curling iron. (Tr. 12-4-13, 176). WilsonStrat had asked if Sears had called Children’s Protective
Services (“CPS”). (Tr. 12-4-13, 176–177). Sears claimed
that CPS wasn’t “going to help.” (Tr. 12-4-13, 177).
Wilson-Strat and Sergeant Glass met for approximately
15 minutes inside Sergeant Glass’ vehicle. (Tr. 12-4-13,
176). Wilson-Strat and Sergeant Glass discussed the
prior attempt on Jessica’s life. (Tr. 12-4-13, 32–33). Wilson-Strat told Sergeant Glass that they “needed it to be
done before April 18th” because the Sears’ divorce would
be final by that date. (Tr. 12-6-13, 30–31). As it turned
out, Sears and Jessica were divorced on April 18, 2011.
(Tr. 12-6-13, 32).
Soon after this conversation, Wilson-Strat met with
Christina at Christina’s request to discuss Sergeant
Glass. (Tr. 12-4-13, 177, 181). Sears wanted “as much . .
. out of the details as possible” because “he was going to
be the first person that they looked at if, in fact, Jessica
was murdered.” (Tr. 12-4-13, 178). Christina asked Wilson-Strat if she could meet Sergeant Glass. (Tr. 12-4-13,
181). By this time, Sergeant Glass’ attempts to investigate the prior attempt on Jessica’s life led him to the
discovery of “a report from the Michigan State [Police]
about a break-in at Jessica Sears house.” (Tr. 12-6-13,
34).
Christina ultimately met with Sergeant Glass on Friday, April 8, 2011, who was again wearing an audio
wire, at the Comfort Suites in Warren. (Tr. 12-4-13, 182;
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Tr. 12-6-13, 34–36). Sergeant Glass spoke with Christina and boyfriend, Bashar Mansour, in the hotel lobby.
(Tr. 12-6-13, 35–36). To Sergeant Glass, Christina
“wanted to see if [he] was for real or not.” (Tr. 12-6-13,
36–42). She indicated that Sears “felt he was getting the
short end of the stick in the divorce, wasn’t’ going to get
the house and Jessica would get custody of the kids.” (Tr.
12-6-13, 42). Christina was “gleeful” during the conversation, stating at the end of the meeting: “I’m so excited.” (Tr. 12-6-13, 41).
After this meeting, Wilson-Strat spoke with Christina.
(Tr. 12-4-13, 182). Christina said that Sergeant Glass
“seemed like he could be a cop.” (Tr. 12-4-13, 182). Wilson-Strat asked: “[D]o you want to go with this guy or
[Clark and Powell]?” (Tr. 12-4-13, 182). Christina replied: “[W]e can go with [Sergeant Glass].” (Tr. 12-4-13,
182).
Later, at trial, the assistant prosecuting attorney introduced Wilson-Strat’s cellular telephone records into evidence, including her text messages from late 2010 and
early 2011 with Sears and Christina. (Tr. 12-4-13, 189–
228; Tr. 12-5-13, 16–20). Wilson-Strat told the jury that
she and Sears employed code words like “computer” and
“party” instead of explicit words like “kill” or “murder”
in their text messages. (Tr. 12-4-13, 202; Tr. 12-5-13, 19–
20). For example, on March 6, 2011, Sears text-messaged Wilson-Strat: “It’s okay, I miss you, I loved cuddling with you last night, hope we can do it again soon,
any word on that computer.” (Tr. 12-5-13, 20). WilsonStrat testified at trial that she interpreted this text message to mean: “Any word on, if these people were going
to kill her.” (Tr. 12-5-13, 21). Wilson-Strat later replied:
“I need you to keep going, I look forward to your texts,
to your calls, to you coming to see me, me coming to see
you, you holding me, holding you, Kevin, I need you for.”
(Tr. 12-5-13, 22). Sears answered: “So that’s a no, then,
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right.” (Tr. 12-5-13, 22). Referring to Clark and Powell,
she retorted: “Haven’t talked to them, I’m pissed, haven’t heard from them, will let me know today.” (Tr. 125-13, 22).
On March 7, 2011, Sears and Wilson-Strat exchanged
text messages regarding Clark’s acceptance of the
$1,000.00 and the fact that Clark not “go[ing] through
with the death of Jessica.” (Tr. 12-5-13, 52–54). On one
occasion during this period, Wilson-Strat and Sears
were text-messaging about marriage. (Tr. 12-4-13, 199–
200). Sears text-messaged Wilson-Strat: “You do your
job and I’ll marry you.” (Tr. 12-4-13, 199–200). At trial,
Wilson-Strat testified that she understand [sic] what
Sears meant in that text message because Sears “had
asked [her] to do one thing.” (Tr. 12-4-13, 200, 202). On
another occasion, Sears text-messaged Wilson-Strat:
“When are we doing this?” (Tr. 12-4-13, 218). She replied: “It will be fixed this next weekend.” (Tr. 12-4-13,
220). Wilson-Strat told the jury that “fixed” meant the
“death of Jessica.” (Tr. 12-4-13, 220). At another point,
Sears text-messaged Wilson-Strat: “No more fucking
waiting.” (Tr. 12-4-13, 224). Wilson-Strat responded:
“Please don’t cuss at me, and the guy went to jail, I have
one more guy, just got to talk to him, please give me a
little more time.” (Tr. 12-4-13, 224).
Later, Sears text-messaged her: “Everyone had their
chance, nor I’ll get my turn.” (Tr. 12-4-13, 225). WilsonStrat answered: “No, Kevin, please.” (Tr. 12-4-13, 225).
Wilson-Strat “didn’t want [Sears] to kill [Jessica] . . .
[b]ecause he would go away for the rest of his life.” (Tr.
12-4-13, 225). She text-messaged Sears: “You will go
away for life.” (Tr. 12-4-13, 226). He subsequently textmessaged Wilson-Strat: “. . . I don’t want to hear another
word.”(Tr. 12-4-13, 227). Still, Sears later text-messaged
Wilson-Strat: “You doing it.” (Tr. 12-4-13, 228). She replied: “Of course I am, babe.” (Tr. 12-4-13, 228). Wilson9
Strat testified that she meant to inform Sears that she
was “still trying to have Jessica killed.” (Tr. 12-4-13,
228).
On April 9, 2011, Sears text-messaged Wilson-Strat:
“We need to talk when you get here.” (Tr. 12-5-13, 57).
She replied: “Good or bad.” (Tr. 12-5-13, 57). He responded: “Not good.” (Tr. 12-5-13, 57). Wilson-Strat textmessaged: “What is it.” (Tr. 12-5-13, 57). Sears answered: “You know what it is.” (Tr. 12-5-13, 58). She
text-messaged: Almost there, but I got it covered. I told
you yesterday. You don’t want me to tell you, though.”
(Tr. 12-5-13, 58). Wilson-Strat testified that she meant
that she had found Sergeant Glass to kill Jessica. (Tr.
12-5-13, 58).
In February and March of 2011, Wilson-Strat and Christina also exchanged numerous text messages regarding
the plan to kill Jessica. (Tr. 12-5-13, 26–50). WilsonStrat told the jury at trial that Sears “pressured” her
and Christina during these months “[t]o have his wife
murdered.” (Tr. 12-5-13, 34).
After Sergeant Glass’ face-to-face meeting with Christina, he continued to exchange text messages with Wilson-Strat. (Tr. 12-6-13, 42). Sergeant Glass sarcastically
texted her: “Can you possibly get anymore people involved in this?” (Tr. 12-6-13, 42). She replied: “Don’t
worry about it, we don’t snitch.” (Tr. 12-6-13, 43). Soon,
Sergeant Glass received a text message from WilsonStrat: “Chrissy says it’s a go.” (Tr. 12-6-13, 43). Later
that day, she text-messaged Sergeant Glass, indicating
to him that one of Sears’ children had “drank carpet
cleaner” while in Jessica’s care. (Tr. 12-6-13, 42–43). Ultimately, Wilson-Strat sent him a text message stating
that they could meet the following Monday and “they
could give [him] a present.” (Tr. 12-6-13, 44).
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Subsequently, on April 11, 2011, Wilson-Strat and
Christina met face-to-face with Sergeant Glass at the
Comfort Suites in Warren. (Tr. 12-4-13, 182; Tr. 12-6-13,
45). COMET had “arrest teams in place.” (Tr. 12-6-13,
45). Wilson-Strat handed Sergeant Glass, who was
again wearing an audio wire, $500.00. (Tr. 12-4-13, 183;
Tr. 12-6-13, 45, 47). Sears contributed $100.00 and
Christina contributed $400.00. (Tr. 12-4-13, 183). Sears
gave this cash to Wilson-Strat on the previous night. (Tr.
12-4-13, 183). During the meeting, Wilson-Strat telephoned Sears and spoke to him. (Tr. 12-4-13, 184). Sergeant Glass asked Wilson-Strat to telephone Sears because Sergeant Glass “wanted to make sure [Sears] was
serious about his wife being murdered” and that Sears
“wasn’t being set up.” (Tr.12-4-13, 185; Tr. 12-6-13, 46).
Sears told Wilson-Strat to [tell] Sergeant Glass to “call
after the Piston’s game that [he and Wilson-Strat] were
going to that night, so that [he and Sergeant Glass]
could have a conversation.” (Tr. 12-4-13,184; Tr. 12-613, 49). Sergeant Glass “was supposed to call [WilsonStrat’s] phone.” (Tr. 12-4-13, 184). Near the end of the
meeting, Wilson-Strat told Sergeant Glass: “[Sears]
asked if [you] could make Jessica suffer.” (Tr. 12-6-13,
48). Sergeant Glass replied: “So you’re okay with a little
bit of torture.” (Tr. 12-6-13, 48). Wilson-Strat responded
affirmatively. (Tr. 12-6-13, 48).
As the meeting concluded, Sergeant Glass “gave the signal for the arrest teams to come” into the hotel. (Tr. 126-13, 65). When the arrest teams did not enter the hotel,
Sergeant Glass walked outside the hotel, which was “the
back-up signal for the arrest teams to come in.” (Tr. 126-13, 66). At this point, the COMET officers entered the
hotel and arrested Wilson-Strat and Christina. (Tr. 126-13, 66–67).
Pet. App. Brf., pp. 1–12.
11
Following his convictions and sentencing, Petitioner filed an
appeal of right with the Michigan Court of Appeals raising several
claims, including those raised in his habeas petition. The court denied relief on those claims and affirmed his convictions. People v.
Sears, No. 320458, 2015 WL 3757613, *1–4. Petitioner then filed
an application for leave to appeal with the Michigan Supreme
Court, which was denied in a standard order. People v. Sears, 499
Mich. 856, 873 N.W.2d 318 (2016). Petitioner subsequently challenged his judgment of sentence on state collateral review, but was
denied relief. Those proceedings are not germane to this habeas action.
Petitioner thereafter filed his federal habeas petition. He
raises the following claims:
I.
The trial court violated his due process rights by empaneling
a jury referred to only by juror numbers and by failing to give
a proper cautionary instruction.
II.
He was denied his constitutional right to present a defense, to confront witnesses against him, and to a fair
trial when the trial court refused to allow impeachment
of Mallorie Wilson-Strat with extrinsic evidence of a
prior inconsistent statement that she made to Latoyia
Brooks.
12
Respondent has filed an answer to the petition contending that it
should be denied because the first claim is barred by procedural default and both claims lack merit.
III. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241 et seq., 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:
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) (1996).
“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 indistinguishable from a decision of [the Supreme] Court
13
and nevertheless arrives at a result different from [that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) (per curiam)
(quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)); see also
Bell v. Cone, 535 U.S. 685, 694 (2002).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) 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 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. However, “[i]n order for
a federal court to find a state court’s application of [Supreme Court]
precedent ‘unreasonable,’ the state court’s decision must have been
more than incorrect or erroneous. The state court’s application
must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at
520–21 (citations omitted); see also Williams, 529 U.S. at 409.
“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, 521 U.S. at 333, n. 7; Woodford v. Viscotti,
537 U.S. 19, 24 (2002) (per curiam)).
The United States Supreme Court has held that “a state
court’s determination that a claim lacks merit precludes federal ha-
14
beas 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 “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)). 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. Thus, in order to obtain federal habeas relief, a state prisoner
must show that the state court’s rejection of a 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.; see also White v. Woodall, 572 U.S. 415, 419 (2014).
Federal judges “are required to afford state courts due respect by
overturning their decisions only when there could be no reasonable
dispute that they were wrong.” Woods v. Donald, 135 S. Ct. 1372,
1376 (2015). A habeas petitioner cannot prevail as long as it is
within the “realm of possibility” that fairminded jurists could find
the state court decision to be reasonable. Woods v. Etherton, 136 S.
Ct. 1149, 1152 (2016).
15
Section 2254(d)(1) limits a federal court’s review to a determination of whether the state court’s decision comports with clearly established federal law as determined by the Supreme Court at the
time the state court renders its decision. Williams, 529 U.S. at 412;
see also 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”) (quoting Wright v. Van
Patten, 552 U.S. 120, 125–26 (2008) (per curiam)); Lockyer, 538 U.S.
at 71–72. Section 2254(d) “does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on
the merits.’” Harrington, 562 U.S. at 100. Furthermore, it “does not
require citation of [Supreme Court] cases–indeed, it does not even
require awareness of [Supreme Court] cases, so long as neither the
reasoning nor the result of the state-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540
U.S. at 16.
The requirements of “clearly established law” are to be determined solely by Supreme Court precedent. Thus, federal circuit or
district court cases do not constitute clearly established Supreme
Court law and cannot provide the basis for federal habeas relief.
See Parker v. Matthews, 567 U.S. 37, 48 (2012) (per curiam); see also
16
Lopez v. Smith, 135 S. Ct. 1, 2 (2014) (per curiam). The decisions of
lower federal courts, however, may be useful in assessing the reasonableness of a state court’s decision. Stewart v. Erwin, 503 F.3d
488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667,
671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 2d 354, 359
(E.D. Mich. 2002).
Lastly, a state court’s factual determinations are presumed correct on federal habeas review. 28 U.S.C. § 2254(e)(1). A petitioner
may rebut this presumption with clear and convincing evidence.
Warren v. Smith, 161 F.3d 358, 360–61 (6th Cir. 1998). Moreover,
habeas review is “limited to the record that was before the state
court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
IV.
Discussion
A.
Use of Juror Numbers
Petitioner first asserts that he is entitled to habeas relief be-
cause the trial court referred to jurors by their numbers instead of
their names and did not give a proper cautionary instruction. Respondent contends that this claim is barred by procedural default
and that it lacks merit.
Federal habeas relief may be precluded on a claim that a petitioner has not presented to the state courts in accordance with the
state’s procedural rules. Wainwright v. Sykes, 433 U.S. 72, 85–87
(1977); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). The doctrine
17
of procedural default applies when a petitioner fails to comply with
a state procedural rule, the rule is actually relied upon by the state
courts, and the procedural rule is “adequate and independent.”
White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2006); Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005); Coleman v. Mitchell, 244
F.3d 533, 539 (6th Cir. 2001). “A procedural default does not bar
consideration of a federal claim on either direct or habeas review
unless the last state court rendering a judgment in the case ‘clearly
and expressly’ states that its judgment rests on a state procedural
bar.” Harris v. Reed, 489 U.S. 255, 263–64 (1989). The last explained state court ruling is used to make this determination. Ylst
v. Nunnemaker, 501 U.S. 797, 803–05 (1991).
The Michigan Court of Appeals rendered the last reasoned opinion on this claim. In denying relief, the court relied upon a state
procedural bar – Petitioner’s failure to object at trial. Sears, 2015
WL 3757613 at *2. The failure to make a contemporaneous objection is a recognized and firmly-established independent and adequate state law ground for refusing to review trial errors. People v.
Carines, 460 Mich. 750, 763, 597 N.W.2d 130, 138 (1999); People v.
Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557, 579 (1994); see also
Coleman v. Thompson, 501 U.S. 722, 750–51 (1991). Moreover, a
state court does not waive a procedural default by looking beyond
18
the default to determine if there are circumstances warranting review on the merits. Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir.
1989). Plain error review does not constitute a waiver of state procedural default rules. Girts v. Yanai, 501 F.3d 743, 755 (6th Cir.
2007); Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Seymour
v. Walker, 224 F.3d 542, 557 (6th Cir. 2000). Nor does a state court
fail to sufficiently rely upon a procedural default by ruling on the
merits in the alternative. McBee v. Abramajtys, 929 F.2d 264, 267
(6th Cir. 1991). The Michigan Court of Appeals denied relief on this
claim based a procedural default – Petitioner’s failure to object at
trial.
A state prisoner who fails to comply with a state’s procedural
rules waives the right to federal habeas review absent a showing of
cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman, 501 U.S. at 753; Gravley v. Mills, 87
F.3d 779, 784–85 (6th Cir. 1996). To establish cause, a petitioner
must establish that some external impediment frustrated the ability to comply with the state’s procedural rule. Murray v. Carrier,
477 U.S. 478, 488 (1986). A petitioner must present a substantial
reason to excuse the default. Amadeo v. Zant, 486 U.S. 214, 223
(1988). Such reasons include interference by officials, attorney error
rising to the level of ineffective assistance of counsel, or a showing
19
that the factual or legal basis for a claim was not reasonably available. McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).
Petitioner neither alleges nor establishes cause to excuse this default. A federal habeas court need not address the issue of prejudice
when a petitioner fails to establish cause to excuse a procedural default. Smith v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen,
722 F.2d 286, 289 (6th Cir. 1983). Nonetheless, the Court notes
that Petitioner cannot establish prejudice (or that he is otherwise
entitled to habeas relief on the merits of this claim) because, as explained by the Michigan Court of Appeals in reviewing the claim for
plain error, the claim also lacks merit. See Sears, 2015 WL 3757613
at *2.
Although the United States Court of Appeals for the Sixth Circuit has held that the empaneling of an anonymous jury should be
limited to circumstances in which the jury needs reasonable protections, and then only after taking care to minimize any prejudicial
effect on the defendant, United States v. Talley, 164 F.3d 989, 1001
(6th Cir. 1999) (citing cases), neither due process nor the Sixth
Amendment require that a juror’s identity be disclosed. See United
States v. Lawson, 535 F.3d 434, 440–41 (6th Cir. 2008) (rejecting
the notion that the Constitution establishes a right to juror identification). The Supreme Court has never held that jurors must be
referred to by their names, rather than by their juror numbers. See
20
Cook v. Haas, No. 5:13-CV-12171, 2014 WL 256286, *3 (E.D. Mich.
Jan. 23, 2014) (citing Lawson, 535 F.3d at 440, and denying habeas
relief on similar claim). Consequently, Petitioner cannot show that
the state court’s denial of relief is contrary to or an unreasonable
application of clearly established Supreme Court precedent. See
Wright v. Van Patten, 552, U.S. 120, 126 (2008) (“Because our cases
give no clear answer to the question presented..., it cannot be said
that the state court unreasonably applied clearly established Federal law.”) (internal quotations and citations omitted).
Moreover, as explained by the Michigan Court of Appeals, the
jurors were not anonymous to the parties. The parties had access to
the juror questionnaires and had the opportunity to ask the jurors
questions about their backgrounds, attitudes, and potential biases.
The trial court’s use of juror numbers did not render the jury ‘anonymous’ nor otherwise preclude the parties from conducting an adequate jury voir dire.
Petitioner relatedly asserts that the trial court erred by failing
to give a cautionary jury instruction that referring to the jurors by
number was a uniform practice and not a reflection of his guilt or
dangerousness. In order for habeas relief to be warranted on the
basis of incorrect jury instructions, a petitioner must show more
than that the instructions are undesirable, erroneous or universally
condemned. Rather, taken as a whole, they must be so infirm that
21
they rendered the entire trial fundamentally unfair. Estelle v.
McGuire, 502 U.S. 62, 72 (1991); Henderson v. Kibbe, 431 U.S. 145,
154 (1977). A jury instruction is not to be judged in artificial isolation, but must be considered in the context of the instructions as a
whole and the trial record. Jones v. United States, 527 U.S. 373, 391
(1999); Grant v. Rivers, 920 F. Supp. 769, 784 (E.D. Mich. 1996).
The failure to give an instruction that is supported by the evidence
does not automatically justify habeas relief – the failure to instruct
must have rendered the trial fundamentally unfair. Cupp v. Naughten, 414 U.S. 141, 147 (1973); Daniels v. Lafler, 501 F.3d 735, 741
(6th Cir. 2007). “An omission, or an incomplete instruction, is less
likely to be prejudicial than a misstatement of the law.” Henderson,
431 U.S. at 155. State law instructional errors rarely form the basis
for federal habeas relief. Estelle, 502 U.S. at 71–72.
There is no clearly established Supreme Court precedent requiring such a cautionary instruction – and the “decision to empanel an
anonymous jury ‘is within the sound discretion of the trial court,’”
Lawson, 535 F.3d at 439 (quoting United States v. Talley, 164 F.3d
989, 1001 (6th Cir. 1999)). There is no indication in the record that
the jurors in this case would have believed that the trial court had
prejudged the case or found Petitioner to be dangerous based upon
the jury voir dire method. See, e.g., Johnson v. Smith, No. 15-CV10574, 2017 WL 3007065, *12 (E.D. Mich. July 14, 2017) (denying
22
habeas relief on similar claim). To be sure, the trial court instructed
the jury that Petitioner was presumed innocent and that their decision should be based upon the evidence presented at trial. Jurors
are presumed to follow the court’s instructions. See Penry v. Johnson, 532 U.S. 782, 799 (2001) (citing Richardson v. Marsh, 481 U.S.
200, 211 (1987)); United States v. Powell, 469 U.S. 57, 66 (1984)
(“Jurors ... take an oath to follow the law as charged, and they are
expected to follow it.”). The lack of a specific cautionary instruction
on the court’s jury voir dire method did not render the trial fundamentally unfair. Petitioner fails to establish a constitutional violation. This claim lacks merit.
Petitioner also fails to establish that a fundamental miscarriage
of justice occurred. The miscarriage of justice exception requires a
showing that a constitutional violation probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513
U.S. 298, 326–27 (1995). “‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523
U.S. 614, 624 (1998). “To be credible, [a claim of actual innocence]
requires a petitioner to support his [or her] allegations of constitutional error with new reliable evidence – whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence – that was not presented at trial.” Schlup, 513
U.S. at 324. Petitioner makes no such showing. This claim is thus
23
barred by procedural default, otherwise lacks merit, and does not
warrant habeas relief.
B.
Exclusion of Prior Inconsistent Statement
Petitioner also asserts that he is entitled to habeas relief because
the trial court violated his rights to due process, to present a defense, and to confront the witnesses against him by refusing to allow defense counsel to cross-examine a witness with a prior inconsistent statement. Respondent contends that this claim lacks merit.
The Michigan Court of Appeals described the facts underlying this
claim as follows:
At trial, defendant's trial counsel questioned Wilson–
Strat regarding Latoyia Brooks, who was a fellow inmate and food-service coworker of Wilson–Strat. Defendant asked Wilson–Strat if she had discussed the
case with Brooks, and Wilson–Strat replied, “Not that I
recall.” Outside the presence of the jury, defense counsel
elicited testimony from Brooks that while in the prison
shower together, Wilson–Strat told Brooks that she had
tried to have her boyfriend's wife murdered. Brooks further testified that Wilson–Strat said she was going to
testify against defendant because “she was trying to
take him down with her because he didn't love her like
she loved him.” The trial court excluded Brooks' testimony from trial. On appeal, defendant asserts that the
trial court should have permitted defendant to impeach
Wilson–Strat with Brooks' testimony.
Sears, 2015 WL 3757613 at *3.
A federal court may only grant habeas relief to a person who is
“in custody in violation of the Constitution or laws or treaties of the
24
United States.” 28 U.S.C. § 2254(a). Alleged trial court errors in the
application of state evidentiary law are generally not cognizable as
grounds for federal habeas relief. See Estelle v. McGuire, 502 U.S.
62, 67–68 (1991) (“it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions”);
Serra v. Michigan Dep’t of Corrections, 4 F.3d 1348, 1354 (6th Cir.
1993). An error in state procedure or evidentiary law does not rise
to the level of federal constitutional claims warranting habeas relief, “unless the error renders the proceeding so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth
Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004)
(quoting Estelle, 502 U.S. at 69-70); see also Wynne v. Renico, 606
F.3d 867, 871 (6th Cir. 2010) (citing Bey v. Bagley, 500 F.3d 514,
519-20 (6th Cir. 2007)); Bugh v. Mitchell, 329 F.3d 496, 512 (6th
Cir. 2003).
The right of an accused to present a defense has long been recognized as a “fundamental element of due process.” Washington v.
Texas, 388 U.S. 14, 19 (1967); see also Holmes v. South Carolina,
547 U.S. 319, 329-31 (2006); Chambers v. Mississippi, 410 U.S. 284,
302 (1973). A defendant’s right to present a defense is not unlimited, however, and may be subject to “reasonable restrictions.”
United States v. Scheffer, 523 U.S. 303, 308 (1998). For example, a
defendant “does not have an unfettered right to offer evidence that
25
is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Montana v. Egelhoff, 518 U.S. 37, 42 (1996)
(quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)); see also
Holmes, 547 U.S. at 326 (recognizing that “well-established rules of
evidence permit trial judges to exclude evidence if its probative
value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury”).
State rules excluding evidence from criminal trials “do not abridge
an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to
serve.’” Scheffer, 523 U.S. at 308 (internal citations omitted). “A defendant’s interest in presenting . . . evidence may thus bow to accommodate other legitimate interests in the criminal trial process.”
Id. In such cases, the question is not whether the jury would reach
a different result, but whether the defendant was afforded “a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta,
467 U.S. 479, 485 (1984)); see also Chambers, 410 U.S. at 302.
The Confrontation Clause guarantees a criminal defendant the
right to confront the witnesses against him or her. Davis v. Alaska,
415 U.S. 308, 315 (1973). “Cross-examination is the principal
means by which the believability of a witness and the truth of his
testimony are tested. Subject always to the broad discretion of a
26
trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness's story to test the witness’s perceptions and memory, but the
cross-examiner has traditionally been allowed to impeach, i.e., discredit the witness.” Id. at 314. The right of cross-examination, however, is not absolute. Trial judges “retain wide latitude insofar as
the Confrontation Clause is concerned to impose reasonable limits
on such cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness’s
safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. VanArsdall, 475 U.S. 673, 679 (1986); see also
Jordan v. Warden, Lebanon Corr. Inst., 675 F.3d 586, 594 (6th Cir.
2012). As the United States Court of Appeals for the Sixth Circuit
has explained:
‘The key issue is whether the jury had enough information to assess the defense's theory of the case despite
the limits on cross-examination.’ United States v.
Holden, 557 F.3d 698, 704 (6th Cir. 2009). ‘So long as
cross-examination elicits adequate information to allow
a jury to assess a witness’s credibility, motives, or possible bias, the Sixth Amendment is not compromised by a
limitation on cross-examination.’ United States v. Cueto,
151 F.3d 620, 638 (7th Cir. 1998); accord United States
v. Fields, 763 F.3d 443, 464 (6th Cir. 2014).
United States v. Callahan, 801 F.3d 606, 624 (6th Cir. 2015).
27
The Michigan Court of Appeals denied relief on this claim, explaining in relevant part:
Defendant next argues that the trial court erred when it
refused to allow defendant to impeach Wilson–Strat
with evidence of a prior inconsistent statement. Defendant claims this violated his constitutional right to present a defense, confront the witnesses against him, and
a fair trial. We disagree.
***
Any party may attack the credibility of a witness. MRE
607. MRE 613 provides that, under certain circumstances, a witness may be examined regarding a prior
inconsistent statement for impeachment purposes:
(a) Examining witness concerning prior statement. In
examining a witness concerning a prior statement made
by the witness, whether written or not, the statement
need not be shown nor its contents disclosed to the witness at that time, but on request it shall be shown or
disclosed to opposing counsel and the witness.
(b) Extrinsic evidence of prior inconsistent statement of
witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness
is afforded an opportunity to explain or deny the same
and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice
otherwise require. This provision does not apply to admissions of a party opponent as defined in Rule
801(d)(2).
Pursuant to MRE 613, to impeach a witness a party
must first lay a proper foundation “by questioning the
witness concerning the time and place of the statement
and the person to whom it was allegedly made.” People
28
v. Rodriguez, 251 Mich. App. 10, 34–35; 650 NW2d 96
(2002).
Defendant did not lay the proper foundation for the admission of the Wilson–Strat’s alleged inconsistent statement. As the trial court found, defense counsel did not
directly ask Wilson–Strat whether she ever told Brooks
her motivation for testifying. Rather, defense counsel
only generally asked whether Wilson–Strat told Brooks
about her “situation.” Defense counsel was also misleading about the timing of the alleged statement—asking
Wilson–Strat if she talked to Brooks during a break
when they were working in a food line, but then eliciting
testimony from Brooks about a statement made while
they were in the prison showers. Because Wilson–Strat
did not have an opportunity to admit, deny, or explain
her alleged statement to Brooks, it was not outside the
range of principled outcomes to exclude the statement.
Duenaz, 306 Mich. App. at 90.
Defendant argues that the trial court could have allowed
defense counsel to question Brooks about Wilson–Strat's
statement and later recall Wilson–Strat to give her the
opportunity to admit, deny, or explain it. Defendant is
correct that MRE 613(b) contains no particular sequence
or timing required for the foundational order. People v.
Parker, 230 Mich. App. 677, 683; 584 N.W.2d 753 (1998).
But this Court has explained that “the traditional
method of confronting a witness with his inconsistent
statement prior to its introduction into evidence [is] the
preferred method of proceeding,” and it prevents a prior
statement from being “incorrectly interpreted by a jury
as substantive evidence.” Id. (citation omitted). In Parker, this Court concluded that where the defendant
knew about the declarant's prior inconsistent statement
before the witness testified, it was not an abuse of discretion for the trial court to rule that the traditional se-
29
quence be followed. Id. at 683–684. Here, defense counsel never requested an opportunity to recall Wilson–
Strat to establish a proper foundation after Brooks testified about the alleged prior statement. But even if defense counsel had made such a request, the trial court
would not have erred by ruling that the traditional
method should be followed to prevent any misunderstanding about the purpose of the evidence—for impeachment, not substance. See id.
Sears, 2015 WL 3757613 at *2–4.
The state court’s denial of relief is neither contrary to Supreme
Court precedent nor an unreasonable application of federal law or
the facts. First, to the extent that Petitioner asserts that the trial
court erred in excluding the testimony under Michigan law, he
merely alleges a violation of state law which does not justify federal
habeas relief. State courts are the final arbiters of state law and
federal courts will not intervene in such matters. Lewis v. Jeffers,
497 U.S. 764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir.
1987); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Sanford
v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Habeas relief does not
lie for perceived errors of state law. Estelle, 502 U.S. at 67–68.
Second, with regard to federal law, the exclusion of the evidence
did not render Petitioner’s trial fundamentally unfair, impede his
right to present a defense, nor violate his right to confront the witnesses against him. The trial court excluded the prior inconsistent
statement testimony as hearsay and found that defense counsel
30
failed to lay a proper foundation for its admission into evidence (as
a prior inconsistent statement). This was a reasonable exercise of
the state court’s discretion in implementing the Michigan Rules of
Evidence and did not render the trial fundamentally unfair. Moreover, while the trial court’s evidentiary ruling foreclosed one avenue
for impeachment of Wilson-Strat, Petitioner nevertheless mounted
a meaningful defense and effectively confronted Wilson-Strat at
trial. The record reflects that defense counsel challenged WilsonStrat’s version of events and her credibility during an extensive
cross-examination, see 12/5/13 Trial Tr., pp. 74–167, 12/12/13 Trial
Tr. pp. 88–154, presented several defense witnesses, see 12/6/13
Trial Tr., pp. 177–240, 12/12/13 Trial Tr., pp. 22–87, and argued
during closing arguments that Wilson-Strat was not worthy of belief and that Petitioner was innocent of the charges. See 12/13/13
Trial Tr., pp. 41, 53–58. Petitioner fails to establish a violation of
his constitutional rights.
Lastly, even if the trial court erred in some fashion, such error
was harmless. For purposes of federal habeas review, a constitutional error that implicates trial procedures is considered harmless
if it did not have a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 637 (1993); see also Fry v. Pliler, 551 U.S. 112, 117–118 (2007)
31
(confirming that the Brecht standard applies in “virtually all” habeas cases); Ruelas v. Wolfenbarger, 580 F.3d 403, 411 (6th Cir.
2009) (ruling that Brecht is “always the test” in the Sixth Circuit).
In this case, Wilson-Strat’s testimony, the text messages between
the parties, the evidence confirming the break-in at the Sears’ home
while Jessica was present, and Sergeant Glass’s testimony provided
significant evidence of Petitioner’s guilt. The trial court’s ruling did
not have a substantial or injurious effect on the jury’s verdict. Habeas relief is not warranted on this claim.
V.
Conclusion
For the reasons stated, the Court concludes that Petitioner is
not entitled to federal habeas relief on his claims. Accordingly,
the Court DENIES and DISMISSES WITH PREJUDICE the
petition for a writ of habeas corpus.
Before Petitioner may appeal the Court’s decision, a certificate
of appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R.
APP. P. 22(b). A certificate of appealability may issue only if the
petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a federal court denies
relief on the merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find the
court’s assessment of the constitutional claim debatable or wrong.
32
Slack v. McDaniel, 529 U.S. 473, 484–85 (2000). “A petitioner satisfies this standard by demonstrating that . . . jurists could conclude
the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). When
a court denies relief on procedural grounds without addressing the
merits, a certificate of appealability should issue if it is shown that
jurists of reason would find it debatable whether the petitioner
states a valid claim of the denial of a constitutional right, and that
jurists of reason would find it debatable whether the court was correct in its procedural ruling. Slack, 529 U.S. at 484–85. Petitioner
makes no such showing. Accordingly, the Court DENIES a certificate of appealability.
Lastly, the Court DENIES Petitioner leave to proceed in
forma pauperis on appeal as an appeal from the Court’s decision
cannot be taken in good faith. See FED. R. APP. P. 24(a).
SO ORDERED.
Dated: August 30,
2018
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
33
Certificate of Service
I hereby certify that this Opinion and Order was electronically filed,
and the parties and/or counsel of record were served on August 30,
2018.
s/ H. Monda acting in the absence of A. Chubb
Case Manager
34
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