Hill v. Wayne County

Filing 21

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus and denying Certificate of Appealability. Signed by Peter C. Economus. (JPur)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ASKIA HILL,
Petitioner,
v.
BLAINE LAFLER, WARDEN,
Respondent.

Case No. 5:08-CV-14102
Judge Peter C. Economus,
By Designation 1
OPINION AND ORDER

Petitioner, Askia Hill, presently incarcerated at a Michigan correctional facility, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner was convicted after a
jury trial in the Wayne Circuit Court of assault with intent to commit murder, MICH. COMP.
LAWS § 750.83, carjacking, MICH. COMP. LAWS § 750.529a, felon in possession of a firearm,
MICH. COMP. LAWS § 750.224f, and commission of a felony with a firearm, MICH. COMP. LAWS
§ 750.227b. For the reasons stated below, the Court denies the petition. The Court also declines
to issue Petitioner a certificate of appealability.
I. BACKGROUND AND PROCEDURAL HISTORY
This Court recites as follows the relevant facts relied upon by the Michigan Court of
Appeals. These facts are presumed correct on habeas review pursuant to 28 U.S.C. ' 2254(e)(1).
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
Defendants were tried jointly[], as a result of two shootings on
April 6, 2000. Relating to the murder charges, Erwin Wilson was
shot and killed in front of 4171 Drexel [Street], in Detroit. The
assault with intent to murder and carjacking charges arose out of
another shooting, in which Jermaine Davenport, Wilson’s cousin,
was shot in the next and his vehicle, a Yukon, was taken. Both
defendants were acquitted of first-degree murder and the lesser
offense of second-degree murder.
1

Pursuant to Title 28, United States Code, ' 292(b), Chief Judge Alice M. Batchelder designated and
assigned Judge Peter C. Economus to hear this case. (See Designation, docs. # 16 and 17.)

The prosecution’s theory was that [Petitioner], Whitman, Taylor
and a fourth man[] were in a black SUV around 10:00 p.m. on
April 6, 2000, and shot and killed Erwin Wilson, a street-level drug
dealer, in front of 4171 Drexel Street. A few minutes later, the
black SUV approached Jermaine Davenport, Wilson’s cousin, who
was in another SUV parked on the street talking to fourteen-yearold Unique Webster. 2 Someone from the black SUV shot at
Davenport and the SUV and chased him, until Davenport’s SUV
crashed into a parked car and stopped. Davenport got out of his
SUV and was shot at by Whitman and the others. Davenport
sustained a gunshot wound to the neck, and Davenport’s SUV was
taken by several of the perpetrators. Davenport walked to the
house on Drexel, saw Wilson lying in the street, and saw Roosevelt
Walker, a friend of Davenport’s with whom Davenport had been
earlier. Davenport did not name any perpetrators unwell well after
the shootings. In May 2000, Davenport was charged with
Wilson’s murder, but the charges were later dropped.
Defendant Whitman’s defense theory was that Jermaine Davenport
argued with Wilson on the evening in question and was in the SUV
from which the shot that killed Wilson was fired. [Petitioner]’s
defense was that he was not present at either shooting incident, and
that Jermaine Davenport, who was involved in drug-dealing along
with Wilson, had every reason to lie regarding this case.
People v. Whitman, 2006 WL 287861, *1 (Mich. Ct. App. Feb. 7, 2006) (footnote omitted).
Defendant Marcus Taylor was tried with the defendants, but he was acquitted of all charges
related to both shootings. Id., *1, n1. Petitioner filed an appeal by right. His appellate counsel
filed a brief in the Michigan Court of Appeals that raised the following claims:
I.

The trial court’s refusal to sever the charges relating to
[Erwin] Wilson, from those relating to Jermaine Davenport,
was an abuse of discretion which denied [Petitioner] of a
fair trial and due process of law under the Sixth and
Fourteenth Amendments.

II.

[Petitioner] was denied a fair trial and his constitutional
right to present a defense and to due process under the
Sixth and Fourteenth Amendments, through the trial court’s

2

The Court of Appeals misstates one fact: Unique Webster was talking to Erwin Wilson, not Jermaine Davenport.
(Doc. # 9 – 9, People’s Opening Statement, page 25; doc. # 9 – 12, Direct Examination of Unique Webster, page
122.) That misstatement, however, does not impact the analysis herein.

2

(A) comments and interjections, and (B) limitations upon
cross-examination, such that the defense was belittled and
unfairly limited in its presentation.
The Michigan Court of Appeals confirmed Petitioner’s convictions in an unpublished decision.
People v. Whitman, supra.

Petitioner then filed an application for leave to appeal in the

Michigan Supreme Court, but the court denied the application. People v. Hill, 721 N.W.2d 185
(Mich. 2006).
Next, Petitioner filed a motion for relief from judgment in the trial, raising the following
claims: (1) Michigan court rules preclude “operation of the cause and prejudice standard”
applied at trial; (2) he was denied effective assistance of appellate counsel where counsel failed
to raise several issues on direct appeal; (3) the trial court abused its discretion in allowing
evidence to be introduce without the proper foundation; (4) Petitioner’s right to confrontation
was violated when he was not permitted to cross-examine the co-defendant; and (5) the
sentencing guidelines were based on facts not introduced into evidence. (State Trial Court’s
Opinion Denying Motion for Relief, page 3, Doc. # 9 – 20.) The court denied the motion,
determining that Petitioner failed to demonstrate the requisite “good cause for failure to raise the
grounds on appeal and actual prejudice resulting from the alleged irregularities that support the
claim for relief[.]” (Id., page 2, citing Michigan Court Rule 6.508(D)(3)(b).) Petitioner filed a
delayed application for leave to appeal with the Michigan Court of Appeals. The Michigan
Court of Appeals denied Petitioner’s delayed application for leave to appeal for “failure to meet
the burden of establishing entitlement to relief under MCR 6.508(D).” (Order, December 14,
2007, Doc. # 9 – 20, page 1.) The Michigan Supreme Court denied Petitioner’s application for
leave to appeal for the same reason. People v. Hill, 750 N.W.2d 191 (Mich. 2008).

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Petitioner’s petition for writ of habeas corpus sets forth the following claims:
Argument One: The trial court’s refusal to sever the charges
relating to [Erwin] Wilson from those relating to Jermaine
Davenport was an abuse of discretion which denied [Petitioner] a
fair trial and due process under the Sixth and Fourteenth
Amendments.
Argument Two: [Petitioner] was denied a fair trial and his
constitutional rights to present a defense and to due process under
the Sixth and Fourteenth Amendments through the trial court’s (A)
comments and interjections, and (B) limitations upon cross
examination such that the defense was belittled and unfairly
limited in its presentation.
Argument Three: [Petitioner] was denied effective assistance of
appellate counsel as cause for his failure to raise these meritorious
claims on direct appeal.
Argument Four: The trial court abused its discretion and violated
[Petitioner’s] constitutional rights of due process, equal protection,
and fair trial by allowing state evidence to be introduced without
the proper foundation being laid.
Argument Five: It was reversible error for the trial court to allow
Mr. Whitman’s statements to be heard via Sgt. Abdella in lieu of
live testimony before the trier of facts [sic] in violation of
[Petitioner’s] constitutional right to confrontation and right to a fair
trial where Mr. Whitman’s testimony was admitted into evidence
via Sgt. Abdella without a showing of unavailability and a prior
opportunity for cross-examination by [Petitioner] at trial.
Argument Six: The trial court violated [Petitioner’s] federal
constitutional rights, U.S. Const. [Amendments] V, VI, & XIV at
sentencing by scoring the statutory sentencing guidelines based on
its findings of additional facts with the prosecutor had not charged,
which had not been submitted to the jury, and which [Petitioner]
had not admitted.
Argument Seven: [Petitioner] should have been appointed
appellate counsel to represent him on first tier review in the Court
of Appeals pursuant to the Sixth Circuit’s decision based upon
Simmons v. Kapture, 474 F.3d 896 ([6th Cir.] 2005) that Halbert v.
Michigan, 545 U.S. 605, 125 S. Ct. 2588 (2005) should be applied
retroactively on collateral review.
(Petition, doc. # 1, pages 8 – 9.)
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II. STANDARD OF REVIEW
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only
if he can show that the state court’s adjudication of his claims on the merits
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. ' 2254(d).
Under the “contrary to” clause, ' 2254(d)(1), “a federal habeas court may grant the writ
if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a
question of law or if the state court decides a case differently than [the Supreme Court] has on a
set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412 – 13 (2000).
The Supreme Court has recently clarified that “review under ' 2254(d)(1) is limited to the
record that was before the state court . . . .” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
In other words, “[i]f a claim has been adjudicated on the merits by a state court, a federal habeas
petitioner must overcome the limitation of ' 2254(d)(1) on the record that was before the state
court.” Id. at 1400; see Bray v. Andrews, 640 F.3d 731, 737 (6th Cir. 2011).
Under the “unreasonable application” clause, ' 2254(d)(1), a federal habeas court may
grant the writ only if the state court’s application of clearly established federal law to the facts
of the prisoner’s case was objectively unreasonable in light of the evidence presented in the
state court proceedings. Williams, 529 U.S. at 409 – 11. “[A]n unreasonable application of
federal law is different from an incorrect application of federal law,” id. at 410, such that “even
a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.”
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Harrington v. Richter, 131 S.Ct 770, 786 (2011).

Finally, under the “unreasonable

determination” clause, ' 2254(d)(2), federal courts must bear in mind that “a state-court factual
determination is not unreasonable merely because the federal habeas court would have reached
a different conclusion in the first instance.” Wood v. Allen, 130 S. Ct. 841, 849 (2010).
Section 2254(d), as amended by AEDPA, is a “purposefully demanding standard.”
Montgomery v. Bobby, 654 F.3d 668, 676 (6th Cir. 2011) (en banc) (citing Harrington, 131 S.
Ct. at 786). “Section 2254(d) reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice system, not a substitute for ordinary error correction
through appeal.” Harrington, 131 S. Ct. at 786 (internal quotation marks omitted). To obtain
relief, a habeas petitioner must “show that the state court’s ruling on the claim being presented
in federal court 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 786
– 87. This “highly deferential standard” requires that determinations made in state court “be
given the benefit of the doubt.” Pinholster, 131 S. Ct. at 1398 (internal quotation marks
omitted).
III. DISCUSSION
A. Motion to Sever
Petitioner first claims that the trial court’s refusal to sever the charges relating to Erwin
Wilson from those relating to Jermaine Davenport denied Petitioner a fair trial and due process
under the Sixth and Fourteenth Amendments. (Petition, pages 21 – 27.) The Michigan Court of
Appeals rejected this claim on the merits as follows:
This Court reviews a trial court’s determination whether severance
is mandatory de novo. People v. Abraham, 256 Mich. App. 265,
271-72; 662 N.W.2d 836 (2003). Review of the trial court’s
decision to sever related offenses is for an abuse of discretion.
6

People v. Duranseau, 221 Mich. App. 204, 208; 561 N.W.2d 111
(1997). . . .
The trial court did not err in concluding that severance was not
mandatory. Two offenses are related if they are based on the
same conduct or a series of connected acts. MCR 6.120(B). The
prosecution maintains, and we agree, that Erwin [sic] Wilson’s
murder and the assault on Jermaine Davenport, Wilson’s cousin,
constitute “connected acts” under the court rule. Shortly before
Wilson was shot, Davenport was parked in his SUV and saw a
black SUV drive by, driven by defendant Whitman with defendant
Hill in the passenger seat and codefendant Marcus Taylor in the
back seat. Davenport saw the black SUV stop in front of Unique
Webster’s house and heard gunshots. The black SUV drove away,
but Davenport saw it about five minutes later, at which time he
heard gunshots and his vehicle’s rear window shattering.
Davenport drove off, was pursued, and after crashing into a
parked car, got out of his SUV and saw defendants Whitman[,]
Hill and Taylor next to the black SUV. All the men shot at
Davenport, he was struck in the neck, and the men drove away in
his SUV and the black SUV. The acts happened within minutes,
in proximity to each other, and the shooting of Wilson may have
been the motive to Davenport’s shooting. We conclude that the
trial court did not err in concluding severance was not mandatory.
People v. Tobey, 401 Mich. 141; 257 N.W.2d 537 (1977).
People v. Whitman, 2006 WL 287861, * 4-5 (Mich. App., Feb. 7, 2006). The court also found that
the trial court’s denial of Petitioner’s request for severance was not an abuse of discretion, noting
that the trial court set forth its reasons and that the record supported this determination. Id. at *5.
Under Michigan law, the trial court had the discretion to determine whether the claims
should be severed, and after a hearing on the matter, the court denied the motion. Under MCR
6.121(D), “the court may sever the trial of defendants on the ground that severance is
appropriate to promote fairness to the parties and a fair determination of the guilt or innocence
of one or more of the defendants.”
Petitioner’s objections to the trial court’s alleged errors of state law are errors for which
“federal habeas corpus relief does not lie.” Estelle v. McGuire, 502 U.S. 62, 67, 112 (1991).

7

To be cognizable in federal habeas corpus, there must be constitutional errors that were material
to the outcome of the case and resulted in a denial of fundamental fairness to Petitioner.
Jameson v. Wainwright, 719 F.2d 959 (6th Cir. 1983). To obtain federal habeas relief on this
claim involving state law, Petitioner must show that misjoinder of the counts “resulted in
prejudice so great as to deny a defendant his right to a fair trial.” Davis v. Coyle, 475 F.3d 761,
777 (6th Cir. 2007) (citation and internal alterations omitted). A risk of undue prejudice exists
whenever joinder of counts permits introduction of evidence of other crimes that would
otherwise be inadmissible. Id. at 777.
By allowing joinder of offenses, the possibility exists that a jury
may use evidence of one of the charged crimes to infer a general
criminal disposition by the defendant; the jury also may confuse
or cumulate the evidence of the various crimes charges. The
prejudice that [a petitioner] must demonstrate, however, in order
to justify a grant of a writ of habeas corpus is actual prejudice, not
merely the potential for prejudice.
Id. at 777 (internal citations omitted). Here, Petitioner argues that the trial court should have
granted his motion to sever, but he demonstrates no actual prejudice. Without more, this Court
cannot substitute its own judgment for that of the State of Michigan. “[A] state rule of law does
not run afoul of the Fourteenth Amendment because another method may seem to our thinking
to be fairer or wiser or to give a surer promise of protection to the prisoner at bar.” Spencer v.
Texas, 385 U.S. 554, 564 (1967) (reaffirmed by Marshall v. Lonberger, 459 U.S. 422 (1983)).
Petitioner’s first argument is without merit.
B. Trial court’s comments and limitations on cross-examination
In his second argument, Petitioner asserts that the trial court denied him a fair trial by
making comments and interjections throughout the trial and by limiting Petitioner’s counsel’s
ability to cross-examine Unique Webster. (Petition, pages 28-35.) The Michigan Court of

8

Appeals reviewed for an abuse of discretion the trial court’s determination to limit crossexamination and other rulings involving its control of trial proceedings. People v. Whitman,
2006 WL 287861, *5 (Mich. Ct. App., Feb. 7, 2006) (citing People v. Sexton, 250 Mich. App.
211, 221; 646 N.W.2d 875 (2002)). “Under MRE 611(a), a trial court has broad discretion to
control trial proceedings, and in doing so, may impose time limits on cross examination.”
Whitman, 2006 WL 287861 at *5 (citing People v. Thompson, 193 Mich. App. 58, 62; 483
N.W.2d 428 (1992)).

“The right of cross-examination is not without limit; neither the

Confrontation Clause nor due process confers an unlimited right to admit all relevant evidence
or cross-examine on any subject.” Id. at *6 (internal citations omitted). The appellate court
noted that the areas of cross-examination identified by Petitioner’s counsel “were covered by
him at trial or by co-defendant Whitman’s counsel.” Id. at *7. Inconsistencies of statements
and biases of witnesses were “explored at length at trial.” Id. Indeed, “[i]mpeachment Unique
Webster by defense counsel was rampant.” Id. The appellate court concluded that “if there was
error in limiting [Petitioner’s] counsel’s cross-examination of Unique Webster, it was harmless
because additional questioning would not have caused the jury to alter its determination of . . .
credibility and the weight to accord [to] testimony.” Id.
The Sixth Amendment guarantees the criminal defendant the right “to be confronted
with the witnesses against him.” “At the core of the Confrontation Clause is the right of every
defendant to test the credibility of witnesses through cross-examination.” Boggs v. Collins, 226
F.3d 728, 736 (6th Cir. 2000) (citing Davis v. Alaska, 415 U.S. 308, 315-16 (1974); Mayes v.
Sowders, 621 F.2d 850, 855 (6th Cir. 1980)). However, a trial court retains the discretion to
limit the scope of cross-examination. “This includes discretion to impose limits based on
concerns about harassment, prejudice, confusion of the issues, witness safety, or interrogation

9

that is repetitive or only marginally relevant.” Id. at 736 (citing King v. Trippett, 192 F.3d 517,
524 (6th Cir. 1999)). Thus, the Confrontation Clause “guarantees the opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985).
In Boggs, the Sixth Circuit noted that the Davis Court made an important distinction
between a “general attack” and a more “particular attack” on biases or prejudices.
Thus, although Davis trumpets the vital role cross-examination
can play in casting doubt on a witness’s credibility, not all
conceivable methods of undermining credibility are
constitutionally guaranteed. In particular, the Davis Court
distinguished between a “general attack” on the credibility of a
witness—in which the cross-examiner “intends to afford the jury a
basis to infer that the witness’ character is such that he would be
less likely than the average trustworthy citizen to be truthful in his
testimony”—and a more particular attack on credibility “directed
toward revealing possible biases, prejudices, or ulterior motives as
they may related directly to issues or personalities in the case at
hand.” . . . Faced with a situation where a trial court barred crossexamination bearing on a witness’s bias and motive to testify, the
Court concluded that the countervailing state interests “cannot
require yielding of so vital a constitutional right as the effective
cross-examination for bias of an adverse witness.” In a
concurrence, Justice Stewart underscored that the Confrontation
Clause was implicated only because Davis was seeking to show
bias or prejudice.
Boggs, 226 F.3d at 736-37 (citing Davis, 415 U.S. at 316, 321 (internal citations omitted)). In
the Davis trial, Davis, who was charged with burglary, was prevented from showing that a key
witness was on probation for burglary. Davis argued that his purpose was to show the witness’s
bias because the witness was trying “to shield suspicions of his own involvement in the crime,
and because he may have feared that his own probation was in jeopardy.” Davis, 415 U.S. at
319. Although the Davis Court found that the trial court violated the Confrontation Clause by
barring cross-examination, in Boggs, the Sixth Circuit upheld the trial court’s bar. Boggs,
charged with rape, attempted to cross-examine a witness on her alleged prior false accusation of
10

rape, but the trial court would not permit it. The Sixth Circuit upheld that decision, noting that
Boggs’ Confrontation Clause argument “improperly blurs the precise distinctions drawn in
Confrontation Clause jurisprudence.” Boggs, 226 F.3d at 739.
Not having articulated an argument sounding in motive, bias or
prejudice, Boggs instead seeks to elevate his purpose—attacking
[the witness’s] general credibility—into a constitutionally
mandated right. He argues that because [the witness’s] credibility
is central to his case, the Sixth Amendment requires that he be
allowed to cross-examine her on an incident bearing on that
credibility. Because this contention goes beyond the clear sweep
of the Confrontation Clause traced by Davis [and its progeny], we
cannot accept it as a ground for habeas relief.
Id. at 739.

In sum, the salient question is whether the trial court’s limitation on cross-

examination implicated the defendant’s ability to show bias or prejudice, rather than general
issues of credibility.
Here, Petitioner argues that the trial court violated his right to a fair trial by limiting his
counsel’s time to cross-examine Unique Webster. Petitioner states that his counsel at trial
wanted additional time to cross-examine Webster regarding several issues, including
discrepancies in her testimony regarding what she heard and saw during the night in question.
“These areas of questioning would have served to properly present her credibility to the jury for
consideration.” (Petition, page 33.) “Her credibility was crucial to the case, not only because
she was present during the murder, but she was also present when her brother gave [an]
incriminating statement[] that Davenport was the murderer and signed that statement, and had
spoken with Davenport during various pre-trial hearings.” (Id., internal citation omitted.)
Petitioner’s argument falls precisely within the scope of Boggs, where the crossexamination seeks to make a general attack on credibility, not to make a particularized
confrontation on bias or prejudice. A review of the record, including the trial transcript, shows
that considerable time was devoted to cross-examination of Webster, including exploration of
11

her credibility or alleged lack thereof. Indeed, the trial court granted wide latitude to counsel
for co-defendant Whitman, as the following cross-examination process was set forth:
So, this is my thought that maybe we [can] all work with. Perhaps
in this case we have Ms. Silver, who’s conducting a very
extensive cross-examination based upon all the discovery
materials obviously. And then Mr. Elsey [Petitioner’s counsel]
and Mr. Cripps [co-defendant Taylor’s counsel], rather than going
through everything that Ms. Silver has covered, which would
apply to all three defendants, perhaps you might want to get in and
wrap up or reiterate a couple key points that she made during her
cross-examination, which would be in the best interest[s] of your
clients. And then if there’s a particular focus that you have that
deals with your client, hit on that area. Okay?
(Trial Transcript, doc. # 9-13, page 4.) Petitioner’s counsel objected on the record to this
process (id., pages 69-70), but neither at that time nor now was the objection based on anything
other than general credibility of the witness. For that reason, the Confrontation Clause is not
implicated, and Petitioner cannot show that the trial court violated his right to a fair trial.
Petitioner also argues that the trial court’s interjections violated his right to a fair trial.
Although review of the trial transcript shows numerous interruptions by the judge, Petitioner’s
argument fails. As found by the Michigan Court of Appeals, Petitioner did not show that the
court was biased or that its remarks “unduly influenced the jury such that [Petitioner] was
denied a fair trial.” People v. Whitman, 2006 WL 287861, *8 (6th Cir., Feb. 7, 2006).
Further, Petitioner makes no showing that any interruptions or interjections violated the
Constitution. Instead, he merely speculates that the interruptions created the “possibility that
the jury’s suspicions were raised concerning” Petitioner’s defense.

(Petitioner, page 35.)

Without more, there is no ground for federal habeas relief.
C. Claims Raised in Motion for Relief from Judgment
Petitioner’s remaining claims were not presented to the state courts during his appeal of
right. Instead, these claims were first presented to the trial court in his Motion for Relief from
12

Judgment. The trial court denied that motion pursuant to Michigan Court Rule 6.508(D)(3),
finding that Petitioner had failed to demonstrate the requisite “good cause” or prejudice for
failing to have raised them previously. The state appellate courts, using the form order citing to
Rule 6.508(D), denied relief.
Respondent asserts that Petitioner’s claims are procedurally defaulted because he failed
to raise them on direct appeal. Procedural default occurs “[w]hen a habeas petitioner fails to
obtain consideration of a claim by a state court, either due to the petitioner’s failure to raise that
claim before the state courts while state-court remedies are still available or due to a state
procedural rule that prevents state courts from reaching the merits of the petitioner’s claim.”
Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000) (citation omitted). A claim that is
procedurally defaulted may not be considered by a federal habeas court. Id.
Three elements must be satisfied before a claim may be considered to be procedurally
defaulted:
(1) the petitioner failed to comply with a state procedural rule that
is applicable to the petitioner’s claim; (2) the state courts actually
enforced the procedural rule in the petitioner’s case; and (3) the
procedural forfeiture in an “adequate and independent” state
ground foreclosing review of a federal constitutional claim.
Willis v. Smith, 351 F.3d 741, 744 (6th Cir. 2003) (quoting Maupin v. Smith, 785 F.2d
135, 138 (6th Cir. 1986)). Michigan Court Rule 6.508(D) rule provides in part that a court may
not grant relief to a defendant if the motion for relief from judgment alleges grounds for relief
which could have been raised on direct appeal, unless defendant makes a showing of good cause
for the failure to raise such grounds previously and of resultant actual prejudice. In Guilmette v.
Howes, though, the Sixth Circuit held that the form order used by the Michigan Supreme Court
to deny leave to appeal is unexplained because its citation to Michigan Court Rule 6.508(D) is
ambiguous as to whether it refers to procedural default or a rejection on the merits. 624 F.3d
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286, 291-92 (6th Cir. 2010) (en banc). Under Guilmette, this Court must “look through” the
unexplained order of the Michigan Supreme Court—and the identical order used by the
Michigan Court of Appeals—to the state trial court’s decision to determine the basis of the
denial of state post-conviction relief.
Here, the state trial court denied relief on procedural grounds. Citing MCR 6.508(D)(3),
it concluded that Petitioner had failed to demonstrate good cause and actual prejudice on the
basis of his claim of ineffective assistance of appellate counsel. Specifically, the trial court
noted:
[Petitioner] contends [that] his appellate counsel was ineffective
by failing to raise [Petitioner’s] current issues on direct appeal.
This contention is without merit[] because the appellate counsel’s
decision to winnow out weaker arguments and focus on those
more likely to prevail is not evidence of ineffective assistance.
This Court will not second[-]guess the strategies appellate counsel
employed. The record clearly reflects that the constitutional rights
afforded to [Petitioner] under the United States and Michigan
Constitutions have been protected. Furthermore, [Petitioner’s]
argument fails because [he] cannot show any possible prejudice
from appellate counsel’s decisions. Defendant was afforded a fair
trial and full appeal.
(Opinion denying Motion for Relief from Judgment, doc. # 1-3, page 5; internal citations
omitted.) As a result of the trial court’s denial on procedural grounds, Petitoner’s third through
seventh claims are procedurally defaulted.
A state prisoner who fails to comply with a state’s procedural rule waives the right to
federal habeas review absent a showing of cause for non-compliance and actual prejudice
resulting from the alleged constitutional violation or a showing of a fundamental miscarriage of
justice. Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Petitioner asserts ineffective
assistance of appellate counsel as his cause to excuse default. (Petition, Third Claim for Relief.)
In order to show ineffective assistance of counsel, Petitioner must show that his counsel’s
14

performance was deficient and that “the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984); O’Hara v. Wigginton, 24 F.3d 823, 828
(6th Cir. 1994). To determine whether counsel’s performance was deficient, this Court must
determine as follows:
. . . whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally
competent assistance . . . . At the same time, the court should
recognize that counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.
Strickland, 466 U.S. at 690.

Judicial scrutiny of counsel’s performance is thus “highly

deferential.” Id. at 689. The defense is prejudiced only if “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
A criminal defendant does not have a constitutional right to have appellate counsel raise
every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). Strategic and
tactical choices regarding which issues to pursue on appeal are “properly left to the sound
professional judgment of counsel.” United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990).
Truly, “the hallmark of effective appellate advocacy” is the “process of winnowing out weaker
arguments on appeal and focusing on those more likely to prevail.” Smith v. Murray, 477 U.S.
527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52) (internal quotation marks omitted)).
“Generally, only when ignored issues are clearly stronger than those presented will the
presumption of effective assistance of appellate counsel be overcome.” Monzo v. Edwards, 281
F.3d 568, 579 (6th Cir. 2002).
Petitioner fails to show that his appellate counsel’s performance fell wide of the range of
professionally competent assistance. Appellate counsel presented legitimate issues on direct
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appeal. Moreover, none of the claims presented in the motion for relief from judgment are the
kind of claims that are obvious from the trial record and would have resulted in reversal on
appeal. See Meade v. Lavigne, 265 F.Supp.2d 849, 870 (E.D. Mich. 2003). Notably, the trial
court, under the MCR 6.508 directive, found that the claims lacked merit under the prejudice
portion of the cause-and-prejudice test. Because Petitioner fails to demonstrate that appellate
counsel was ineffective he cannot establish cause to excuse his procedural default.
Last, Petitioner has not demonstrated that a fundamental miscarriage of justice has
occurred. The miscarriage of justice exception requires a showing that a constitutional violation
probably resulted in the conviction of one who is actually innocent. Murray v. Carrier, 477
U.S. 478, 479-80 (1986). Such a claim of innocence requires a petitioner to support the
allegations of constitutional error with reliable evidence that was not presented at trial. Sclup v.
Delo, 513 U.S. 298, 324 (1995). Actual innocence means factual innocence, not mere legal
insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998) (emphasis added). Petitioner
does not make such a showing. Therefore, these claims are barred by procedural default, and
they do not warrant habeas relief.
Finally, in his traverse (or reply brief) in support of his petition, Petitioner, for the first
time, alleges that the Detroit Crime Lab’s failure “to preserve and analyze evidence might have
played a vital role in his conviction . . . .”

(“Petitioner’s Answer in Opposition to the

Respondent’s Answer,” doc. # 10, page 20.) A traverse or reply to an answer to a habeas
petition is not the proper pleading for a habeas petitioner to raise additional grounds for relief.
Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994). A court cannot consider new
issues raised in a traverse or reply to the State’s answer because the claim has not been exhausted
in the state court. Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005). Further, even if it were

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properly before this Court, Petitioner offers only speculation as to how any acts or omissions by
the Detroit Crime Lab would be relevant to his case.
. . . [I]f evidence now exist[s] that shows definitively that it is
more likely than not that [Jermaine] Davenport murdered Mr.
Wilson, that Davenport was somehow involved in both shooting
incidents, and that the petitioner was not involved in Davenport’s
manufactured carjacking and assault to advert the police attentions
[elsewhere], it would in fact be a fundamental miscarriage of
justice if the petitioner was compelled to remain incarcerate[d] for
Davenport’s crimes without further proceedings to determine
whether the Detroit Crime Lab contributed to his conviction and
allowed a guilty man to go free.
(Petitioner’s Reply, doc. #10, page 21.) The problem with Petitioner’s argument is that is
dependent upon several layers of supposition: if evidence exists, if that evidence is related to
Davenport, if that evidence related to Davenport is connected to either Wilson’s murder or
Davenport’s shooting, and if that evidence would exculpate Petitioner. Too many leaps are
required for this claim to rise above the amorphous level of guesswork. As a result, even if this
claim were before the Court, it fails.
IV. CERTIFICATE OF APPEALABILITY
A petitioner must receive a certificate of appealability ("COA") in order to appeal the
denial of a habeas petition for relief from either a state or federal conviction. 28 U.S.C. §§
2253(c)(1)(A), (B). A court may issue a COA "only if the applicant has made a substantial
showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a federal district
court rejects a habeas claim on the merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find the district court's assessment of the
constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
"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
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presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537
U.S. 322, 327 (2003)(citation omitted). In applying this standard, a district court may not
conduct a full merits review, but must limit its examination to a threshold inquiry into the
underlying merit of the petitioner's claims. Id. at 336-37. The Court concludes that jurists of
reason would not find the Court's assessment of Petitioner's claims debatable or wrong. The
Court thus declines to issue Petitioner a certificate of appealability.
V. CONCLUSION
Based on the foregoing, the petition for a writ of habeas corpus is DENIED. It is further
ordered that a Certificate of Appealability is DENIED.

/s/ Peter C. Economus _____________
PETER C. ECONOMUS
UNITED STATES DISTRICT JUDGE

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