Johnson v. Rapelje

Filing 29

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, 8 Amended Petition; and Denying Certificate of Appealability, Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DELANGELO JOHNSON,
Case Number: 2:11-CV-14910
HON. JOHN CORBETT O’MEARA

Petitioner,
v.
LLOYD RAPELJE,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Delangelo Johnson seeks habeas corpus relief under 28 U.S.C. § 2254.
Petitioner is a state prisoner in the custody of the Michigan Department of Corrections
pursuant to convictions for second-degree murder, felon in possession of a firearm, and
possession of a firearm during the commission of a felony. He raises eight claims for
habeas relief. Respondent argues that the claims are procedurally defaulted and/or
meritless. The Court denies the petition.
I.

Background
Petitioner’s convictions arise from the killing of Ayanna May. On September 15,

2002, May and Petitioner’s girlfriend, Rashawn Cook, argued outside Cook’s home on
Ashton Street in Detroit. May stood outside her car in front of Cook’s home. A person
identified as Petitioner exited Cook’s home and entered the driver’s seat of a van. The
van drove close to May, an arm reached out the driver’s side window and three shots

were fired in May’s direction. May sustained a fatal gunshot to the head.
Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of
second-degree murder, Mich. Comp. Laws § 750.317, felon in possession of a firearm,
Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a
felony, Mich. Comp. Laws § 750.227b. Petitioner was sentenced to life imprisonment for
the murder conviction, one to five years’ imprisonment for the felon in possession
conviction, and two years’ imprisonment for felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals. He raised
these claims: (i) trial court improperly instructed the jury on second-degree murder; and
(ii) he was denied his right to confrontation, a fair trial and due process by admission of
witness’s preliminary examination testimony. The Michigan Court of Appeals affirmed
Petitioner’s convictions. People v. Johnson, No. 249497, 2004 WL 2726065, at *2
(Mich. Ct. App. Nov. 30, 2004).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court,
raising the same claims raised in the Michigan Court of Appeals. The Michigan Supreme
Court denied leave to appeal. People v. Johnson, 699 N.W.2d 701 (Mich. 2005).
Petitioner then filed a motion for relief from judgment in the trial court, raising
these claims: (i) denied right to a fair trial and impartial jury; (ii) unduly suggestive
pretrial photographic identification; (iii) evidence of prior bad acts improperly admitted;
(iv) prosecutorial misconduct; (v) ineffective assistance of trial counsel; (vi) cumulative
effect of prejudicial errors; and (vii) ineffective assistance of appellate counsel. The trial
2

court dismissed the motion without prejudice and ordered appointment of counsel to
represent Petitioner in the filing of a motion for relief from judgment. See 2/16/06 Order,
ECF No. 11-13. Petitioner, through counsel, filed another motion for relief from
judgment raising essentially raising the same claims raised in the first motion. The trial
court denied the motion. See 4/13/09 Order, ECF No. 11-14. Petitioner sought leave to
appeal in the Michigan Court of Appeals and Michigan Supreme Court. Both state
appellate courts denied leave to appeal. See 10/25/10 Order, ECF No.11-9; People v.
Johnson, 796 N.W.2d 70 (Mich. 2011).
Petitioner then filed a petition for writ of habeas corpus in this Court. The Court
found that the petition was time-barred by the one-year statute of limitations applicable to
habeas corpus petitions. See 7/9/12 Order, ECF No. 13. The Sixth Circuit Court of
Appeals reversed this Court’s decision that the petition was untimely and remanded for
further proceedings. Johnson v. Rapelje, 542 F. App’x 453 (6th Cir. Oct. 22, 2013).
Petitioner seeks habeas corpus relief on these grounds:
I.

Petitioner was denied a fair trial and due process where, over objection, the
trial court instructed on second-degree murder.

II.

Extraneous influence on jurors deprived Petitioner of a fair trial and due
process.

III.

Use of unnecessarily suggestive pretrial identification procedure deprived
Petitioner of due process and a fair trial.

IV.

Impermissibly introduction of prior bad acts denied Petitioner due process
and a fair trial.

V.

Prosecutorial misconduct in the form of denigrating defense counsel and
3

engaging in burden shifting argument denied due process and a fair trial.
VI.

Ineffective assistance of trial counsel in failure to object, failure to file
pretrial motions, failure to remove jurors for cause, failure to interview alibi
witnesses and present an alibi defense and failure to present expert
testimony at trial prejudiced Petitioner.

VII.

Lack of due diligence by the prosecutor in producing eye witness
prejudiced Petitioner.

VIII. Failure to provide constitutionally effective representation on appeal.
Respondent filed an answer to the petition arguing that certain of the claims are
procedurally defaulted and that all are meritless. Petitioner filed a reply brief.
II.

Standard of Review
Review of this case is governed by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). Under the AEDPA, a state prisoner is entitled to a writ of
habeas corpus only if he can show that the state court’s adjudication of his claims –
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court has
on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405

4

(2000). An “unreasonable application” occurs when “a state court decision unreasonably
applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 408. “[A]
federal habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 411.
The Supreme Court has explained that “[a] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “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.
Visciotti, 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). The Supreme Court has emphasized “that even a strong case for
relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102.
Furthermore, pursuant to § 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 th[e Supreme] Court.” Id.
Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely
5

bar federal courts from relitigating claims that have previously been rejected in the state
courts, it preserves the authority for a federal court to grant habeas relief only “in cases
where there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with” Supreme Court precedent. Id. Indeed, “Section 2254(d) 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.
(quoting Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979)) (Stevens, J., concurring)).
Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to
show that the state court’s rejection of his claim “was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Id. at 103, 131 S. Ct. at 786–87.
Additionally, a state court’s factual determinations are entitled to a presumption of
correctness on federal habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut
this presumption with clear and convincing evidence. See 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).

6

III.

Discussion
A.

Procedural Default

Respondent argues that several of Petitioner’s claims are procedurally defaulted.
“[F]ederal courts are not required to address a procedural-default issue before deciding
against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003),
citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997). “Judicial economy might counsel
giving the [other] question priority, for example, if it were easily resolvable against the
habeas petitioner, whereas the procedural-bar issue involved complicated issues of state
law.” Lambrix, 520 U.S. at 525. In this case, the Court finds that the interests of judicial
economy are best served by addressing the merits of Petitioner’s claims.
B.

Jury Instruction Claim

Petitioner’s first claim for habeas relief argues that the trial court erred in
instructing the jury on the lesser-included offense of second-degree murder.
“Generally speaking, a state court’s interpretation of the propriety of a jury
instruction under state law does not entitle a habeas claimant to relief.” Rashad v. Lafler,
675 F.3d 564, 569 (6th Cir. 2012), citing 28 U.S.C. § 2254(a); Estelle v. McGuire, 502
U.S. 62, 67-68 (1991). Federal habeas relief lies for a jury instruction claim only when
the “instruction is so flawed as a matter of state law as to ‘infect[] the entire trial’ in such
a way that the conviction violates due process.” Id. quoting Henderson v. Kibbe, 431
U.S. 145, 154 (1977). It is not enough to show that the “the instruction is undesirable,
erroneous, or even ‘universally condemned.’” Henderson, 431 U.S. at 154.
7

On direct appeal, the Michigan Court of Appeals held that the testimony presented
at trial placed at issue whether Petitioner acted with premeditation and deliberation.
Johnson, 2004 WL 2726065 at *1. Because the jury could have rationally concluded that
there was no premeditation and deliberation, the Court of Appeals found that the
instruction was proper. Id. Petitioner has not demonstrated any error under state law,
much less overcome the substantially higher hurdle he faces under AEDPA. The state
court’s decision rejecting Petitioner’s argument based on jury instructions easily
withstands scrutiny under AEDPA.
C.

Right to an Impartial Jury

In his second habeas claim, Petitioner argues that he was denied his right to an
impartial jury because the jury was exposed to an extraneous influence. He argues that
the jury witnessed the victim’s family members threatening Petitioner’s family inside the
courtroom.
The Sixth Amendment right to trial by jury encompasses the right to a fair trial by
a panel of impartial jurors. Irvin v. Dowd, 366 U.S. 717 (1961). The right to due process,
however, does not necessarily require a new trial in every instance in which a juror is
potentially exposed to an extraneous influence. Smith v. Phillips, 455 U.S. 209, 217
(1982). Rather, “[d]ue process means a jury capable and willing to decide the case solely
on the evidence before it, and a trial judge ever watchful to prevent prejudicial
occurrences and to determine the effect of such occurrences when they happen.” Id.
An extraneous influence on a juror is “‘one derived from specific knowledge about
8

or a relationship with either the parties or their witnesses.’” Garcia v. Andrews, 488 F.3d
370, 376 (6th Cir. 2007), quoting United States v. Herndon, 156 F.3d 629, 635 (6th Cir.
1998)). Examples of extraneous influence include “‘prior business dealings with the
defendant, applying to work for the local district attorney, conducting an out of court
experiment, and discussing the trial with an employee.’” Id. quoting United States v.
Owens, 426 F.3d 800, 805 (6th Cir. 2005). Examples of “internal” influences include
“the behavior of jurors during deliberations, the jurors’ ability to hear and comprehend
trial testimony, and the physical and mental incompetence of a juror.” Williams v.
Bagley, 380 F.3d 932, 945 n.7 (6th Cir. 2004).
The last state court to issue a reasoned opinion regarding this claim, the trial court,
held that the claim was not properly preserved, but nonetheless addressed the merits. The
trial court denied the claim on the ground that no disruptions occurred in the courtroom in
front of the jury. 4/13/09 Order at 6-7, ECF No. 11-14, Pg. ID 1305-06. The trial court
rejected Petitioner’s claim that “improper conduct took place during voir dire, in clear
sight and hearing distance of the jury,” because it “it is simply untrue.” Id. The trial
court held that: “Nothing occurred in court. Nothing occurred in front of the jury.” Id. at
7, ECF No. 11-14, Pg. ID. 1306. The court found “no evidence any juror was threatened
or any juror was aware of the problem between the families.” Id. The court noted that
after a jury was selected, the court excused the jury, and met with the families of the
defendant and the victim and cautioned and admonished them that they much each adhere
to the rules of courtroom decorum. Id. The court reiterated that all of this occurred
9

outside the jury’s presence. Id.
Petitioner argues that the record contradicts the trial court’s finding because when
the trial court met with defendant’s family, the judge stated “I mean, I was sitting right
here, and I could hear it from the back row; a woman and a man said something; I know.”
4/29/03 Tr., at 99-100, ECF No. 11-2. This citation to the record is insufficient to show
that the trial court’s factual finding that jurors were not present during the families’ brief,
contentious interaction was clearly erroneous. There is simply no evidence that the jury
witnessed any improper conduct. Therefore, it was not an unreasonable application of
Supreme Court precedent for the state court to conclude that the jury was not exposed to
extraneous influences.
D.

Pretrial Identification Procedure

Petitioner next argues that the pretrial identification procedure was unduly
suggestive and that Eugene Galloway’s in-court identification should have been
suppressed on that basis. Galloway, who was 12-years old at the time of trial, witnessed
the shooting from his aunt’s car. He later selected Petitioner’s photograph from a photo
array and identified him as the man he saw enter the van from which the fatal gunshot
was fired. Petitioner argues that the photo array was unduly suggestive because he was
the only person with braids, the only one wearing a white shirt, and the most lightskinned.
Due process requires suppression of eyewitness identification evidence “when law
enforcement officers use an identification procedure that is both suggestive and
10

unnecessary.” Perry v. New Hampshire, 565 U.S. 228, 238 (2012). A pretrial
identification violates due process where: (1) the identification procedure is
impermissibly suggestive; and (2) the suggestive procedure gives rise to a very substantial
likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 197-98 (1972); Manson v.
Brathwaite, 432 U.S. 98, 114 (1977) (due process challenges to identification procedures
are reviewed using Biggers’ test). But the Supreme Court has held that suppression of the
tainted identification is not necessarily the inevitable consequence. Brathwaite, 432 U.S.
at 112-113. Instead, the Court has held that determining whether to suppress the
identification should be done on a case-by-case basis. Id. at 116; see also Biggers, 409
U.S. at 201.
The danger is that an initial improper identification procedure will result in
misidentification and will unduly influence later investigation. U.S. v. Wade, 388 U.S.
218, 229 (1967). “[T]he dangers for the suspect are particularly grave when the witness’
opportunity for observation was insubstantial, and thus his susceptibility to suggestion is
the greatest.” Id. Therefore, “reliability is the linchpin in determining the admissibility
of identification testimony. Brathwaite, 432 U.S. at 114. A court must undertake a
two-step analysis to determine the validity of a pretrial identification. First, the court
must determine whether the procedure was unduly suggestive. If the court finds that the
procedure was unduly suggestive, the court must then “evaluate the totality of the
circumstances to determine whether the identification was nevertheless reliable.”
Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994).
11

The Michigan trial court (the last state court to issue a reasoned opinion regarding
this claim) held that the identification procedure was not impermissibly suggestive
stating, in relevant part:
As a general rule, “ physical differences between a suspect and other
line-up participants do not, in and of themselves, constitute impermissible
suggestiveness . . .” People v. Kurylczyk, 443 Mich. 289, 312; 505 N.W.2d
528 (1993) quoting People v. Benson, 180 Mich. App. 433, 438; 487 NW2d
765 (1989). Differences between the participants of a line-up are
considered legally significant only if they are apparent to the witness, and
the difference substantially distinguishes a suspect from the other
participants in the show-up to the extent that “there exists a substantial
likelihood that the differences among line-up participants, rather than
recognition of defendant, was the basis of the witness’ identification.”
Kurylczyk at 312, quoting People v. James, 184 Mich. App. 457; 458
N.W.2d 911 (1990).
Defendant has not demonstrated that the photographic show-up was
impermissibly suggestive.
In this instance there was no significant demonstrable difference in the
height, weight, hair length, hair color, facial features, etc. of the
photographs. There are always some differences in the participants selected
and, of necessity there must be, as no two individuals are identical in all
characteristics of their appearance. All the photos used in the array were
head and shoulder shots. This style of photograph limited the presentation
and view of the head, shoulders and part of the chest of each person in the
array.
Defendant claims he was suggestively distinguished in this array because
his hairstyle was in braids. However, the show-up reveals the hair length of
all the persons in all the photos was very similar. Neither the length, color,
nor style was a distinguishing factor. Moreover, Eugene testified and
described the shooter to the police as having an “afro” hairstyle. None of
the participants in the photo array had that style.
Defendant claims the fact he was the only person in a white shirt in the
array is an impermissibly distinguishable feature. The fact defendant was
the only one in a white shirt in the array is irrelevant. M.R.E. 401. Eugene
12

testified the shooter wore no shirt. Nothing in the record indicates Eugene’s
selection of defendant was based on clothing, a white shirt, rather than
recognition of the person of Johnson, as Eugene testified at trial.
***
... [N]othing in the record indicates that the photo show-up was
impermissibly suggestive.
4/13/09 Order, at 10-12, ECF No. 11-14, at Pg. ID 1309-1311.
The trial court also held that nothing in the record indicated that Eugene’s
testimony was influenced by alleged differences in the photographs contained in the
array. Id.
The Court concludes that the state court’s determination that the identification
procedure was not impermissibly suggestive was not contrary to or an unreasonable
application of Supreme Court precedent. Moreover, even assuming that the identification
procedure was impermissibly suggestive, Petitioner has failed to show the identification
was not reliable. Ultimately, the reliability of the in-court identification was for the jury
to decide. Perry, 132 S. Ct. at 729-30. Habeas relief is denied on this claim.
E.

Admission of Prior Bad Acts Evidence

Next, Petitioner argues that the trial court improperly admitted prior bad acts
evidence in the form of Petitioner’s use of aliases. The state court held that this evidence
was properly admitted under state law.
“[S]tate-court evidentiary rulings cannot rise to the level of due process violations
unless they ‘offend[ ] some principle of justice so rooted in the traditions and conscience

13

of our people as to be ranked as fundamental.’” Seymour v. Walker, 224 F.3d 542, 552
(6th Cir. 2000) quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)). The Supreme
Court has declined to hold that the admission of “other acts” evidence is so extremely
unfair that it violates fundamental conceptions of justice. Dowling v. United States, 493
U.S. 342, 352-53 (1990). The Court has discussed when other acts testimony is
permissible under the Federal Rules of Evidence, see Huddleston v. United States, 485
U.S. 681 (1988), but has not addressed the issue in constitutional terms. Such matters are
more appropriately addressed in codes of evidence and procedure than under the Due
Process Clause. Dowling, 493 U.S. at 352. “There is no clearly established Supreme
Court precedent which holds that a state violates due process by permitting propensity
evidence in the form of other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512
(6th Cir. 2003). Consequently, there is no “clearly established federal law” to which the
state court’s decision could be “contrary” within the meaning of section 2254(d)(1). Id. at
513. Therefore, habeas relief is not available on this claim.
F.

Prosecutorial Misconduct Claim

Petitioner’s fifth claim alleges that the prosecutor engaged in misconduct.
Specifically, Petitioner argues that the prosecutor denigrated defense counsel and shifted
the burden of proof to the defense.
The “clearly established Federal law” relevant to a habeas court’s review of a
prosecutorial misconduct claim is the Supreme Court’s decision in Darden v. Wainwright,
477 U.S. 168, 181 (1986). Parker v. Matthews, 567 U.S. 37, —, 132 S. Ct. 2148, 2153
14

(2012). In Darden, the Supreme Court held that a “prosecutor’s improper comments will
be held to violate the Constitution only if they ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’” Id. quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). This Court must ask whether the Michigan
Court of Appeals’ decision denying Petitioner’s prosecutorial misconduct claims “‘was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.’” Id. at 2155, quoting
Harrington, 562 U.S. at 103.
First, Petitioner argues that the prosecutor denigrated defense counsel when,
during her rebuttal closing argument, she suggested that defense counsel was trying to
“poison” the jury’s view of her in relation to her handling of Eugene Galloway, who was
11-years old at the time of the shooting. See 5/1/03 Tr., at 82, ECF No. 11-4, Pg. ID 697.
Eugene identified Petitioner as the shooter shortly after the shooting, but wavered in his
identification at trial. Petitioner argues that this claim, although properly presented, was
not addressed by the trial court. Petitioner argues that the claim should therefore be
reviewed de novo. The Court need not address this issue because even if de novo review
applies, Petitioner cannot prevail under this more lenient standard.
A prosecutor may not personally attack defense counsel, but the prosecution has
“‘wide latitude’ during closing argument to respond to the defense’s strategies, evidence
and arguments.” Bedford v. Collins, 567 F.3d 225, 223 (6th Cir. 2009), quoting United
States v. Henry, 545 F.3d 367, 377 (6th Cir. 2008). The prosecutor’s argument about
15

defense counsel in this case “was not so incendiary as to inflame the jury’s passions or
distract them from the specific question of [Petitioner’s] guilt or innocence.” Davis v.
Burt, 100 F. App’x 340, 348 (6th Cir. 2004), citing Hutchison v. Bell, 303 F.3d 720, 750
(6th Cir. 2002). The trial judge also instructed the jury that the attorneys’ arguments,
questions, and statements were not evidence. The prosecutor’s isolated comment did not
render the entire trial unfair.
Petitioner also argues that the prosecutor improperly shifted the burden of proof
when she made the following statement in closing argument:
And then he [the police officer] asks the question, “did you shoot Ayanna
May in front of 19701 Ashton? And his answer was “I don’t even know
Ayanna May.” Not, I’ve never shot anyone in my life. Not I’ve never shot
anyone on Ashton. But I don’t even know Ayanna May. Do you know that
he never denied committing the crime?
5/1/03 Tr., at 60, ECF No. 11-4.
The state court found no improper burden-shifting. 4/13/09 Order at 19, ECF No.
11-14 at Pg. ID 1318. Petitioner fails to cite any clearly established law holding that the
prosecutor’s argument was unconstitutional. Supreme Court precedent supports the
prosecutor’s right to comment on and question the content of Petitioner’s police
statement. A prosecutor may not use a defendant’s post-Miranda silence to impeach a
defendant’s trial testimony because “the Miranda warnings carry an ‘implicit assurance’
that silence will carry no penalty.” Pillette v. Berghuis, 408 F. App’x 873, 880 (6th Cir.
2010), quoting Doyle v. Ohio, 426 U.S. 610, 618 (1976). “But Doyle does not apply
where the defendant does not invoke his right to remain silent because ‘a defendant who
16

voluntarily speaks after receiving Miranda warnings has not been induced to remain
silent.’” Pillette, 408 F. App’x at 880, quoting Anderson v. Charles, 447 U.S. 404, 408
(1980). Petitioner responded to police questions rather than invoke his right to remain
silent. Therefore, the prosecutor’s argument regarding Petitioner’s responses to police
questions were not unconstitutional.
G.

Ineffective Assistance of Trial Counsel Claim

Petitioner next seeks habeas corpus relief on the basis of ineffective assistance of
counsel. He claims counsel was ineffective in failing to: (i) object to the prosecutor’s
misconduct; (ii) move to suppress Eugene Galloway’s identification of Petitioner; (iii)
request and present expert testimony on identification; and (iv) call Karl Maydwell as a
witness.
To establish that he received ineffective assistance of counsel, a petitioner must
show, first, that counsel’s performance was deficient and, second, that counsel’s deficient
performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687
(1984). A petitioner may show that counsel’s performance was deficient by establishing
that counsel’s performance was “outside the wide range of professionally competent
assistance.” Id. at 689. This “requires a showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at
687.
To satisfy the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
17

would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. A court’s review of counsel’s
performance must be “highly deferential.” Id. at 689. Habeas relief may be granted only
if the state-court decision unreasonably applied the standard for evaluating
ineffective-assistance-of-counsel claims established by Strickland. Knowles v.
Mirzayance, 556 U.S. 111, 122-23 (2009). “The question is not whether a federal court
believes the state court’s determination under the Strickland standard was incorrect but
whether that determination was unreasonable – a substantially higher threshold.” Id. at
123 (internal quotation omitted).
First, Petitioner argues that counsel was ineffective for failing to object to several
instances of prosecutorial misconduct. As discussed above, Petitioner has failed to show
that the prosecutor engaged in misconduct. Therefore, counsel was not ineffective for
failing to object on this basis.
Petitioner’s claim that counsel was ineffective in failing to file a motion to
suppress Eugene Galloway’s identification is also meritless. As discussed above,
Petitioner failed to show that the identification was suggestive.
Next, Petitioner claims that counsel was ineffective in failing to present expert
testimony on identification. “No precedent establishes that defense counsel must call an
expert witness about the problems with eyewitness testimony in identification cases or
risk falling below the minimum requirements of the Sixth Amendment.” Perkins v.
McKee, 411 F. App’x 822, 833 (6th Cir. 2011). Although counsel did not call an expert
18

witness on the problems of eyewitness identification, trial counsel vigorously
cross-examined Eugene Galloway about the problems with his identification. Petitioner
was not denied effective assistance of counsel due to trial counsel’s failure to seek the
assistance of an expert witness on identification, where counsel elicited testimony to
question the witness’s identification testimony.
Finally, Petitioner argues that counsel was ineffective in failing to call Karl
Maydwell to testify for the defense. He argues that Maydwell would have testified that,
during the time period of the murder, Petitioner was constantly wearing dreadlocks. The
trial court, the last state court to issue a reasoned opinion on this claim, held that
Maydwell’s testimony would have been cumulative to the testimony of a cosmetologist
and Petitioner’s mother, both of whom testified that Petitioner wore dreadlocks. 4/13/09
Order at 16-17 (ECF No. 11-14, Pg. 1326). The trial court also rejected Petitioner’s
argument that Maydwell would have provided him with an alibi. Maydwell’s affidavit
states that “[b]etween 1992 and 2002,” Petitioner often came to his home to visit, “usually
on Sundays after assisting” an elderly neighbor. Affidavit of Karl Maydwell, dated
6/6/08 (ECF No. 1-1, Pg. ID. 80). This vague recitation of Petitioner’s general habits
without specific reference to the date of the shooting would not have provided any
meaningful alibi for Petitioner. The trial court’s holding that counsel was not ineffective
for failing to call Maydwell is not contrary to or an unreasonable application of Supreme
Court precedent.
H.

Missing Witness Claim
19

Petitioner’s next claim for habeas corpus relief concerns the admission of
Dantonettee Anderson’s preliminary examination testimony. Anderson could not be
located at the time of trial and there was evidence that she fled because she was fearful of
testifying. The trial court held that the prosecution made a good faith effort to secure
Anderson’s presence at trial and admitted her preliminary examination testimony.
Petitioner argues that the trial court erred in admitting this testimony because the
prosecution failed to show due diligence, in violation of his rights under the
Confrontation Clause.
The United States Constitution’s Sixth Amendment Confrontation Clause
provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI. “[T]he Sixth
Amendment’s right of an accused to confront the witnesses against him is . . . a
fundamental right and is made obligatory on the States by the Fourteenth Amendment.”
Pointer v. Texas, 380 U.S. 400, 403 (1965). The right to a trial by jury is based on the
belief “‘that the ‘evidence developed’ against a defendant shall come from the witness
stand in a public courtroom where there is full judicial protection of the defendant’s right
of confrontation, of cross-examination, and of counsel.’” Id. at 405 (quoting Turner v.
State of Louisiana, 379 U.S. 466, 472-73 (1965)).
The Confrontation Clause bars out-of-court statements that are testimonial in
nature unless the witness is unavailable and the defendant had a prior opportunity to
cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68 (2004). Petitioner
20

challenges the trial court’s finding that Anderson was unavailable because, he argues, the
prosecution did not make a good-faith effort to obtain her presence at trial. Under federal
law, “a witness is not ‘unavailable’ for purposes of the ... exception to the confrontation
requirement unless the prosecutorial authorities have made a good-faith effort to obtain
his presence at trial.” Barber v. Page, 390 U.S. 719, 724-25 (1968). “The ultimate
question is whether the witness is unavailable despite good-faith efforts undertaken prior
to trial to locate and present that witness”; “the prosecution bears the burden of
establishing this predicate.” Ohio v. Roberts, 448 U.S. 56, 74-75 (1980), abrogated on
other grounds by Crawford, 541 U.S. 36.
Applying this due diligence standard, the Michigan Court of Appeals held that the
prosecution exercised due diligence in attempting to locate Anderson:
The prosecutor had met with Anderson before trial and did not anticipate
that she would fail to appear. Bench warrants were issued on the first day
of trial when Anderson and two other witnesses did in fact fail to appear,
despite subpoenas, and the prosecutor learned that Anderson was “choosing
not to be here.” An adjournment was granted until the next morning to
allow authorities to search for these witnesses and execute the bench
warrants. The following day, the prosecutor noted that one of the missing
witnesses, but not Anderson, had been arrested. Further, Anderson’s
mother was present and advised that Anderson was fearful and had
absconded with her two children. It was established that the police had
gone to Anderson’s home several times and that the preceding evening, the
police heard that she was staying in a hotel on Telegraph Road and thus
sought her at twenty-seven motels and hotels. They also contacted the
schools attended by Anderson’s children, but the children were absent.
These were reasonable efforts and constituted due diligence.
Johnson, 2004 WL 2726065 at *2.
This Court cannot say that the Michigan Court of Appeals’ decision that the
21

prosecutorial team acted with due diligence to secure Anderson’s presence at trial was
contrary to or an unreasonable application of clearly established federal law or an
unreasonable determination of the facts in light of the evidence presented. The Supreme
Court has held that “[t]he lengths to which the prosecution must go to produce a witness
... is a question of reasonableness.” Roberts, 448 U.S. at 74. The record supports a
finding that the prosecution acted with reasonable diligence in this case.
I.

Ineffective Assistance of Appellate Counsel Claim

Finally, Petitioner argues that his appellate attorney was ineffective in failing to
present on direct appeal the issues raised in his motion for relief from judgment.
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). The Supreme Court has held that a petitioner does not
have a constitutional right to have appellate counsel raise every non-frivolous issue on
appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983). The Court further stated:
For judges to second-guess reasonable professional judgments and impose
on appointed counsel a duty to raise every “colorable” claim suggested by a
client would disserve the . . . goal of vigorous and effective advocacy. . . .
Nothing in the Constitution or our interpretation of that document requires
such a standard.
Id. at 754. “[T]here can be no constitutional deficiency in appellate counsel’s failure to
raise meritless issues.” Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999). None of the
claims Petitioner argues his appellate attorney should have raised on appeal have been
shown to have any merit. Therefore, counsel was not ineffective in failing to raise them.
22

IV.

Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of
the Rules Governing Section 2254 Proceedings now requires that the Court “must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.” A
COA may be issued “only if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). The substantial showing threshold is
satisfied when a petitioner demonstrates “that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000).
In this case, the Court concludes that reasonable jurists would not debate the
Court’s conclusion that none of the claims in the habeas petition warrant relief.
Therefore, the Court denies a certificate of appealability.
V.

Conclusion
Accordingly, it is ORDERED that the petition for a writ of habeas corpus and a

certificate of appealability are DENIED.
s/John Corbett O’Meara
United States District Judge
Date: February 3, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record on this date,
February 3, 2017, using the ECF system.

s/William Barkholz
Case Manager

23