Harper v. Palmer

Filing 16

OPINION and ORDER Denying 7 Petition for Writ of Habeas Corpus, Certificate of Appealability, and Leave to Proceed on Appeal In Forma Pauperis. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Willie Harper,
Petitioner,
v.

Case No. 14-cv-13699
Judith E. Levy
United States District Judge

Carmen Palmer,
Respondent.
________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS [7], CERTIFICATE OF APPEALABILITY,
AND LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS
Willie Harper (“Petitioner”), confined at the Chippewa Correctional
Facility in Kincheloe, Michigan, has filed an amended pro se petition for
a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. (Dkt. 7.) In his
application, Petitioner challenges his conviction of three counts of assault
with intent to murder, MICH. COMP. LAWS § 750.831; carrying a concealed
weapon, MICH. COMP. LAWS § 750.227; felon in possession of a firearm,
MICH. COMP. LAWS § 750.224f; and possession of a firearm during the

The judgment of sentence incorrectly reflects that defendant was convicted of
assault with intent to do great bodily harm less than murder.

1

commission of a felony (felony-firearm), MICH. COMP. LAWS § 750.227b.
Petitioner was sentenced as a second-offense habitual offender, MICH.
COMP. LAWS § 769.10, to concurrent terms of 25 to 50 years for each count
of assault with intent to murder, 40 to 60 months for carrying a concealed
weapon and felon in possession, and a consecutive term of two years for
felony-firearm.
For the reasons stated below, the Court denies the petition for a
writ of habeas corpus.

The Court further denies a certificate of

appealability and leave to appeal in forma pauperis.
I.

Background
Petitioner was convicted following a jury trial in the Wayne County

Circuit Court. This Court recites verbatim the relevant facts relied upon
by the Michigan Court of Appeals, which 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).

2

In Docket No. 308639, defendant appeals as of right his
convictions resulting from his shooting at three individuals at
an apartment complex in Detroit, Michigan. Michael Clemons
and Kevin Miller were with Steven Tee standing behind a
gate and near a brick wall near the front of the apartment
complex. Clemons and Miller saw a truck drive by with the
passenger side facing the complex. Clemons identified
defendant as driving the vehicle. The car briefly stopped, and
defendant looked over at the three men. Defendant then
continued down the road, made a u-turn over the sidewalk,
drove back toward the apartment building, and stopped in
front of the gate with the driver’s side facing the complex.
Defendant then extended a semi-automatic gun out of the
window. Clemons testified that defendant said, “[Y]aw
thought I was playing and I told you I will be right back.”
Miller never saw the shooter’s face, but testified that the
shooter pulled out a gun and said, “I told you I would be back.”
Clemons saw defendant point the gun at him, Tee, and Miller,
and start shooting through the gate. Miller dropped to the
ground while Tee and Clemons ran. Clemons and Miller heard
the bullets hitting the concrete and bricks of the building.
When running, Clemons looked back to see where defendant
was located. Defendant then looked directly at Clemons, shot
two more times, and hit Clemons in the forehead with one of
the bullets. Brandon Bunch, a resident of the apartment
complex, testified and confirmed that Clemons had been shot
in the head and had a slight wound. Bunch also testified that
before defendant drove away from the scene, he said “I’ll be
back.”
Two police officers noticed defendant driving at a high rate of
speed and disregard a stop sign. They pursued him and saw
3

that he threw an assault weapon out of the window.
Defendant continued to flee from the police but when he
attempted to turn left, he was unsuccessful, and his car struck
a fence. Defendant ran out of the car and began fleeing on foot.
He was eventually subdued and arrested, and the gun he
threw out of the window was recovered. In a written
statement to the police, defendant admitted that he was at the
apartment complex because he had been robbed by four males
two days before the shooting, but he claimed that he only shot
the gun in the air and ran from the police because he had the
gun. Clemons and Miller testified that they never saw
defendant point his gun and fire it in the air. Clemons later
went to the hospital and received staples and stitches for the
bullet wound.
********************************************************
In Docket No. 309330, defendant appeals by leave granted his
plea of no contest to felonious assault and felony-firearm
relating to his behavior in pursuing a female victim with a
gun. The trial court ordered defendant to pay $68 in state
costs per conviction, $130 for the crime victim’s rights fee,
$600 in court costs, and $400 in attorney fees. Defendant now
appeals in both dockets on several grounds. 2
People v. Harper, Nos. 308639, 309330; 2013 WL 4766677, at *1–2 (Mich.
Ct. App. Sept. 5, 2013), vacated in part on other grounds by 497 Mich. 885
(2014).

The facts underlying this conviction were not discussed by the Michigan Court of
Appeals, as they were not relevant to the issues on appeal.
2

4

Petitioner’s conviction was affirmed in part and vacated in part on
appeal. Id. The Michigan Supreme Court denied leave to appeal in
Docket No. 308639, and ordered the court of appeals to hold in abeyance
Docket No. 309330 pending decisions in two other cases.

People v.

Harper, 495 Mich. 947 (2014). After those two court of appeals decisions
were issued, the Michigan Supreme Court vacated the part of the court
of

appeals

opinion

addressing

court

costs

and

remanded

for

reconsideration of this issue, but denied leave to appeal all other aspects
of Petitioner’s application. People v. Harper, 497 Mich. 885 (2014).
Petitioner now seeks a writ of habeas corpus on the following
grounds:
I. The Michigan courts unreasonably applied federal law in
finding that there was no violation of Petitioner’s right to
effective counsel as guaranteed by the Sixth Amendment,
where trial counsel failed to object to the absence of Dr.
Janowicz and Steve Tee, failed to obtain an expert witness,
failed to object to the admission of medical records where the
author of said records did not testify, failed to object to
perjured testimony and other instances of prosecutorial
misconduct and failed to investigate.
II. The state court unreasonably applied federal law in
concluding that there was sufficient evidence to support
Petitioner’s convictions for assault with intent to commit
5

great bodily harlm [sic]. Therefore, petitioner is entitled to
issuance of the writ of habeas corpus.
III. The state courts unreasonably applied federal law in
denying Petitioner a new trial where the prosecutor
transgressed the bounds of professional conduct by
denigrating defense witnesses which denied Petitioner a fair
trial.
IV. Petitioner is entitled to habeas relief where the trial judge
erroneously scored him 50 points under offense variable 6,
over defense objection, which caused Petitioner to be
sentenced based on inaccurate information and to a longer
minimum term allowed by law.
(Dkt. 7 at 9.)
II.

Legal Standard
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), imposes the following standard of
review for habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
6

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.
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 (2000). An
“unreasonable

application”

occurs

when

“a

state-court

decision

unreasonably applies the law of [the Supreme Court] to the facts of a
prisoner’s case.” Id. at 409. “[A] federal habeas court may not issue the
writ simply because that court concludes in its independent judgment
that the relevant state-court decision applied clearly established federal
law erroneously or incorrectly.”

Id. at 411.

“[A] state court’s

determination that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). And “even a strong
7

case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75
(2003)).

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 the
Supreme Court. Id.
Thus, 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.” Harrington, 562 U.S. at 103. A habeas petitioner should
be denied relief as long as it is within the “realm of possibility” that
fairminded jurists could find the state court decision to be reasonable.
See Woods v. Etherton, ___ U.S. ___, 136 S. Ct. 1149, 1152 (2016).
III. Analysis
Petitioner raises four separate claims. First, he argues the state
courts unreasonably applied federal law in rejecting his ineffective
8

assistance of counsel claims.

Second, he argues the state courts

unreasonably applied federal law in concluding there was sufficient
evidence to convict him of assault with intent to commit murder. Third,
he argues the state courts unreasonably applied federal law in denying
him a new trial despite what Petitioner describes as prosecutorial
misconduct. Finally, Petitioner argues the trial judge incorrectly scored
his offense level, causing him to serve a longer sentence than was
permissible.
A. Ineffective Assistance of Counsel Claim
Petitioner first contends that the state courts unreasonably applied
federal law in finding no Sixth Amendment violation because his trial
counsel was ineffective in (1) failing to object to the introduction of
medical records prepared by Dr. Janowitz, who did not testify at trial; (2)
failing to ensure the prosecutor produced Steven Tee as a witness at trial;
(3) failing to obtain an expert witness; (4) failing to object to perjured
testimony from Kevin Miller; (5) failing to object to prosecutorial
misconduct; and (6) failing to investigate and adequately prepare for
trial. (Dkt. 7 at 34–48.)

9

Respondent argues that Petitioner has procedurally defaulted part
of this claim because he failed to properly raise the issue before the
Michigan Court of Appeals. (Dkt. 8 at 28.) Specifically, Respondent
argues Petitioner is procedurally defaulted from raising two parts of this
claim: (1) that counsel was ineffective for failing to object to Mr. Tee’s
absence at trial, and (2) that counsel was ineffective for failing to object
to the admission of the medical records. (Id.) These two arguments,
Respondent argues, were not supported in Petitioner’s brief to the
Michigan Court of Appeals “with citations to the record and to relevant
legal authority,” which is “tantamount to abandoning [them.]” (Id.)
While failing to raise claims on direct appeal can result in
procedural default, the Court declines to find these two claims defaulted.
The Michigan Court of Appeals stated that “defendant fails to explain or
cite any authority” to support his arguments, 2013 WL 4766677 at *7,
but they do not expressly say that he did so little as to “simply [] announce
a position . . . and then leave it up to [the] Court to discover and
rationalize the basis for his claims.” People v. Kevorkian, 248 Mich. App.
373, 389 (2001) (quoting Mitcham v. Detroit, 355 Mich. 182 (1959)). And
Respondent has not supplied the briefs submitted to the court of appeals,
10

so this Court is unable to determine whether Petitioner truly failed to
provide any support for his claims. Accordingly, these two claims are not
defaulted, and the Court will consider all of Petitioner’s arguments on
the merits.
To show that he was denied the effective assistance of counsel, a
defendant must satisfy a two-prong test.

First, the petitioner must

demonstrate that, considering all of the circumstances, counsel’s
performance was so deficient “that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the
petitioner must overcome a “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial
strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)). Second, the petitioner must demonstrate prejudice by showing
“there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at
694. “Strickland’s test for prejudice is a demanding one. ‘The likelihood
11

of a different result must be substantial, not just conceivable.’” Storey v.
Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011) (quoting Harrington, 562
U.S. at 112).
And on habeas review of state court determinations, “[t]he 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.’”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v.
Landrigan, 550 U.S. 465, 473 (2007)). Thus, pursuant to 28 U.S.C.
§ 2254(d)(1), “doubly deferential judicial review” applies to a Strickland
claim brought by a habeas petitioner, id., and “a state court must be
granted a deference and latitude that are not in operation when the case
involves review under the Strickland standard itself.” Harrington, 562
U.S. at 101.
Because of this doubly deferential standard, the Supreme Court has
indicated that:
Federal habeas courts must guard against the danger of
equating
unreasonableness
under
Strickland
with
unreasonableness under § 2254(d). When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable.
12

The question is whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.
Harrington, 562 U.S. at 105. Thus, a reviewing court must “affirmatively
entertain the range of possible ‘reasons [counsel] may have had for
proceeding’” as he did. Cullen v. Pinholster, 563 U.S. 170, 196 (2011).
Failure to Object to Absence of Dr. Janowicz & Admission of
Medical Records
Petitioner first argues that the state courts erred in holding that
trial counsel’s failure to object to the absence of Dr. Janowicz and to the
admission of medical records he prepared did not violate his Sixth
Amendment rights.

He argues that Dr. Janowicz’s absence and

admission of the records he prepared violated the Confrontation Clause,
and counsel was clearly ineffective in failing to object to both of these
alleged constitutional violations. (Dkt. 7 at 34–40.)
The Confrontation Clause “bars the admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for
cross-examination.” United States v. Arnold, 486 F.3d 177, 187 (6th Cir.
2007) (citing Crawford v. Washington, 541 U.S. 36, 53–54 (2004)). The

13

scope of this clause is limited to testimonial hearsay.

Davis v.

Washington, 547 U.S. 813, 823–24 (2006).
Petitioner first argues that trial counsel was ineffective by failing
to object to the admission of the medical records, claiming a violation of
the Confrontation Clause. 1 But the medical records prepared by Dr.
Janowicz, the physician and radiologist who treated Steven Tee after the
incident that gave rise to Petitioner’s convictions, (see Dkt. 8 at 10–11),
are nontestimonial. The victim, Mr. Clemons, was seeking treatment for
the injuries sustained in the incident that resulted in Petitioner’s
conviction, and the records created were done so to provide a diagnosis
and course of treatment, not in preparation for litigation or to be provided
to law enforcement. And nothing in the record suggests Dr. Janowicz
anticipated the records being used in litigation at the time they were
made. These records are, therefore, nontestimonial, and do not implicate
the Confrontation Clause. See United States v. Garner, 148 F. App’x 269,

Petitioner did not raise this issue in the state courts. There, he argued only that
admission of the records violated Brady v. Maryland, 373 U.S. 83 (1963). Harper,
2013 WL 4766677, at *7. Respondent has not argued the claim is defaulted, and the
Sixth Circuit has counseled that courts “should not embrace sua sponte raising of
procedural default issues as a matter of course.” Howard v. Bouchard, 405 F.3d 459,
476 (6th Cir. 2005) (internal citation and quotations omitted). Accordingly, the Court
will review the claim on the merits.
1

14

274 (6th Cir. 2005) (introduction of medical records prepared by
physicians who did not testify at trial did not violate Confrontation
Clause because records were prepared to obtain disability benefits); see
also Moses v. Payne, 555 F.3d 742, 755 (9th Cir. 2009) (statements made
to emergency room physician were nontestimonial); United States v.
Santos, 589 F.3d 759, 763 (5th Cir. 2009) (same); United States v.
Peneaux, 432 F.3d 882, 896 (8th Cir. 2005) (statements made to a
physician seeking to give medical aid in the form of diagnosis or
treatment are presumptively non-testimonial).
Petitioner relies on Melendez-Diaz v. Massachusetts, 557 U.S. 305,
311 (2009), to support his argument. But this case only highlights the
nontestimonial nature of Dr. Janowicz’s records. In Melendez-Diaz, the
Court held that affidavits prepared for trial by forensic analysts at a
state-run lab were testimonial. 557 U.S. at 311. This is wholly unlike
medical records prepared by a treating physician for the purpose of
properly diagnosing and treating a patient.
Because the admission of the medical records did not violate the
Confrontation Clause, counsel was not objectively deficient and therefore

15

not ineffective for failing to object to their admission on this basis. United
States v. Johnson, 581 F.3d 320, 328 (6th Cir. 2009).
Further, because the medical records were nontestimonial, no
testimonial hearsay was elicited from Dr. Janowicz, and the
Confrontation Clause does not apply to him. Accordingly, even though
there was no stipulation or waiver of his presence, Dr. Janowicz was not
required at trial under the Confrontation Clause.2
Because there is no Confrontation Clause violation with respect to
the absence of Dr. Janowicz, counsel was not ineffective for failing to
object to his absence. Further, as the Michigan Court of Appeals held:
“there is no evidence to suggest that the radiologist would have testified
favorably for defendant.” Harper, 2013 WL 4766677, at *7. Accordingly,
the Michigan Court of Appeals reasonably concluded that Petitioner “has
not demonstrated that his counsel behaved objectively unreasonably or
that the result of the trial would have been different.” Harper, 2013 WL
4766677, at *7. Petitioner is not entitled to relief on this claim.

To the extent that Petitioner argues the prosecutor was required to present Dr.
Janowicz, at most, this argument is governed by state law. Violations of state law
and procedure which do not infringe on specific federal constitutional protections are
not cognizable claims under section 2254. Estelle v. McGuire, 502 U.S. 62, 67–68
(1991).

2

16

Failure to Disclose Medical Records
As part of his argument that trial counsel was ineffective for failing
to object to admission of medical records, Petitioner also claims that the
medical records were not turned over to the defense early enough to
prepare for trial, allegedly in violation of Brady v. Maryland, 373 U.S. 83
(1963). (Dkt. 7 at 44.)
Failure to disclose information may give rise to a cognizable claim
if the information was material under Brady, and “there is a reasonable
probability that, had the evidence been disclosed, the result of the trial
would have been different.” United States v. Bencs, 28 F.3d 555, 560 (6th
Cir. 1994). Materiality pertains to the issue of guilt or innocence, and
not to the defendant’s ability to prepare for trial. United States v. Agurs,
427 U.S. 97, 112 n.20 (1976). And where, as here, the issue is not a
complete failure to disclose, but is instead delay, such “[d]elay only
violates Brady when the delay itself causes prejudice.” 28 F.3d at 561
(quoting United States v. Patrick, 965 F.2d 1390, 1400 (6th Cir. 1992),
vacated and remanded on other grounds, 507 U.S. 956 (1993)). Whether
delay causes prejudice “is really just a type of inquiry into materiality”;
thus, “a defendant must show what he would have done differently had
17

he been given more time . . . and specifically how, had the evidence been
given to the defendant earlier, a reasonable probability exists that the
result of the defendant’s trial would have been different.” United States
v. Spry, 238 F. App’x 142, 147–48 (6th Cir. 2007).
In this case, Petitioner has failed to offer any evidence or argument
to show that any of the medical records contained exculpatory material.
Allegations that are merely conclusory or which are purely speculative
cannot support a Brady claim. Burns v. Lafler, 328 F. Supp. 2d 711, 724
(E.D. Mich. 2004) (internal citation omitted). Moreover, Petitioner is
unable to show that he was prejudiced by the allegedly late disclosure of
the medical records because he failed to present what he or counsel would
have done differently had the medical records been disclosed at an earlier
point in time. Thus, he has not demonstrated that there is a reasonable
probability the outcome of the trial would have been different had the
records been disclosed sooner.
For these reasons, the Michigan Court of Appeals reasonably
applied federal law in finding “[t]here is no basis to conclude that
a Brady violation occurred or that defense counsel was ineffective for

18

failing to raise this issue below.” Harper, 2013 WL 4766677, at *7.
Accordingly, Petitioner is not entitled to relief on this claim.
Failure to Object to Absence of Steven Tee
As with Dr. Janowicz, Petitioner claims that trial counsel was
ineffective for failing to object to the absence of Steven Tee because he
had a right to confront the victim of the crime of which he was accused.
But the right to confrontation extends only to individuals who provide
testimonial statements, whether in or out of court, against a defendant.
Crawford v. Washington, 541 U.S. 36, 50–51 (2004). And Petitioner
himself admits that “Mr. Tee did not testify and no out of court
statements made by Mr. Tee was [sic] admitted into evidence.” (Dkt. 7
at 41.) Thus, the Confrontation Clause was not violated, and counsel
cannot be held constitutionally deficient for failing to raise this claim.
Accordingly, the state courts reasonably applied federal law in finding
that Petitioner “failed to establish that he was denied the effective
assistance of counsel.” Harper, 2013 WL 4766677, at *7. Petitioner is
not entitled to relief on this claim.

19

Failure to Obtain Expert Witness
Petitioner next argues that trial counsel was ineffective by failing
to obtain an expert witness to rebut Clemons’ injuries, arguing an expert
would testify that the injuries were not caused by Petitioner’s gun. (Dkt.
7 at 42–43.)3
An ineffective assistance of counsel claim based on failure to call an
expert witness cannot be based on speculation. Keith v. Mitchell, 455
F.3d 662, 672 (6th Cir. 2006). Here, Petitioner has offered no evidence to
show there was or is an expert who would have impeached the victim’s
testimony concerning the nature or source of his injuries.

Thus,

Petitioner cannot show counsel’s performance was unreasonable nor can
he show prejudice. Accordingly, Petitioner is not entitled to a writ of
habeas corpus on this claim.
Failure to Object to Perjured Testimony
Petitioner claims that the state courts unreasonably concluded that
trial counsel was not ineffective by failing to object to perjured testimony
given by Kevin Miller. (Dkt. 7 at 44–45.) Citing to the trial transcript

It does not appear that Petitioner raised this claim in the state courts. But the
Court will consider the claim on the merits for the same reasons set forth in footnote
2.

3

20

from March 15, 2013, he argues that Mr. Miller testified at the
preliminary examination that Petitioner did not aim the gun at anyone,
but Miller changed his testimony at trial, and his attorney was ineffective
for failing to object to this instance of perjury. (Dkt. 7 at 45 (citing Tr. at
76:7-25).)
The “deliberate deception of a court and jurors by the presentation
of known false evidence is incompatible with the ‘rudimentary demands
of justice.’” Giglio v. United States, 405 U.S. 150, 153 (1972) (quoting
Mooney v. Holohan, 294 U.S. 103, 112 (1935)). The same is true even if
a prosecutor “although not soliciting false evidence, allows it to go
uncorrected when it appears.” Id. (quoting Napue v. Illinois, 360 U.S.
264, 269 (1959)). To prevail on “a claim of prosecutorial misconduct or
denial of due process, the defendant must show that the statement in
question was actually false, that the statement was material, and that
the prosecutor knew it was false. Coe v. Bell, 161 F.3d 320, 343 (6th Cir.
1998) (quoting United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.
1989)). Further, the statement in question must be “indisputably false,”
not just misleading. Byrd v. Collins, 209 F.3d 486, 517–18 (6th Cir.
2000).
21

Mere inconsistencies in a witness’ testimony do not establish the
knowing use of false testimony by the prosecutor. Coe, 161 F.3d at 343.
Additionally, the fact that a witness contradicts himself or changes his
story does not establish perjury. Drain v. Woods, 902 F. Supp. 2d 1006,
1030 (E.D. Mich. 2012) (citing United States v. Lebon, 4 F.3d 1, 2 (1st Cir.
1993)).
Here, despite Petitioner’s allegation that Mr. Miller changed his
story, the record reflects that his trial testimony was consistent with the
preliminary

examination

testimony.

During

the

preliminary

examination, Mr. Miller testified that Petitioner “point[ed] the gun
‘[s]traight, straight out the window.’” Harper, 2013 WL 4766677, at *8.
And at trial, he testified that Petitioner pointed a gun out of a car
window, without aiming at anyone, when the initial shots were fired. (Tr.
(Mar. 15, 2013) at 76–77).
Because there were no inconsistencies in Mr. Miller’s testimony,
Petitioner lacks any evidence to suggest the trial testimony was false and
that the prosecutor knew it to be false. Thus, there was no perjury to
object to, and the Michigan Court of Appeals reasonably determined that
Petitioner “failed to demonstrate that his counsel behaved objectively
22

unreasonably or that any perceived error prejudiced him.” Harper, 2013
WL 4766677, at *8. Brown v. Burt, 65 F. App’x 939, 942 (6th Cir. 2003).
Failure to Object to Prosecutorial Misconduct
Petitioner next contends that counsel was ineffective for failing to
object to the prosecutor’s inappropriate attacks on the credibility of the
defense witnesses, which Petitioner raises as a separate claim of
prosecutorial misconduct below. (Dkt. 7 at 45–46.)4
To show prejudice under Strickland for failing to object to
prosecutorial misconduct, a habeas petitioner must show that but for the
alleged error of his trial counsel in failing to object to the prosecutor’s
improper questions and arguments, there is a reasonable probability that
the outcome of the proceeding would have been different. Hinkle v.
Randle, 271 F.3d 239, 245 (6th Cir. 2001).
Prosecutors may not “comment on the credibility of a witness” to a
jury, Hodge v. Hurley, 426 F.3d 368, 378 (6th Cir. 2005), but may suggest
to a jury that a witness is not credible provided this is “coupled with a

Again, it does not appear Petitioner raised this claim in the state courts. The Court
will nonetheless review it on the merits for the reasons set forth in footnote 2.

4

23

detailed analysis of the record.” Cristini v. McKee, 526 F.3d 888, 902 (6th
Cir. 2008).
As set forth below, the state courts found that the prosecutor’s
comments did not constitute misconduct because they were drawn from
the facts and evidence presented at trial. Further, the “prosecutor did
not imply that she had some type of special knowledge regarding the
witnesses’ credibility.” Harper, 2013 WL 4766677, at *10. For example,
the prosecutor stated certain witnesses should not be believed because
they were not present during the shooting. Id. The prosecutor was not
presenting a personal view, but comments, viewed in context, that were
“coupled with a detailed analysis of the record.” Cristini, 526 F.3d at 902.
In sum, there was no prosecutorial misconduct to object to, and counsel
was not ineffective for failing to object during the closing.

Id.

Accordingly, Petitioner is not entitled to habeas relief on the basis of this
claim.
Failure to Investigate
Petitioner alleges that trial counsel failed to investigate Steven Tee
and did not adequately defend against the claim that Petitioner
attempted to murder him. Specifically, Petitioner argues that “Trial
24

counsel neglected to investigate evidence that the alleged complainant
Michael Clemons was the uncle of an individual nick-named ‘Mook.’ This
‘Mook’ Character was mentioned in police reports taken at the scene and
identified as one of the men that previously robbed the Petitioner.” (Dkt.
7 at 48.) Petitioner claims that an investigation would have uncovered
information used to impeach Mr. Clemons’ testimony about receiving
staples in his head, and “would have informed the jury of Clemons’
potential motive to testify falsely.” (Id.) 5
“A particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.” Wiggins v. Smith, 539 U.S. 510, 521–
22 (2003) (quoting Strickland, 466 U.S. at 690–91). And “[i]n assessing
prejudice, [a court] reweigh[s] the evidence in aggravation against the
totality of available mitigating evidence.” Wiggins, 539 U.S. at 534.
Here, assuming that defense counsel acted unreasonably in failing
to investigate ‘Mook,’ Petitioner cannot demonstrate prejudice from this
decision. First, even if ‘Mook’ had been found, Petitioner provides no

Petitioner does not appear to have raised this claim in the state courts. Again, the
Court will review the claim on the merits for the reasons set forth in footnote 2.

5

25

evidence to suggest he would have contradicted Mr. Clemons’ testimony
with respect to the medical treatment received or corroborated the claim
that he previously robbed Petitioner.

And, as set forth above, an

ineffective assistance of counsel claim for failure to produce a witness
cannot be based on speculation about what the witness would say.
Further, Mr. Clemons was not the only witness who testified about
the extent of his injuries or Petitioner’s conduct. Brandon Bunch and
Lana Rice, residents of the apartment complex, testified that Mr.
Clemons was struck in the forehead.

Mr. Bunch also testified that

Petitioner said, “I’ll be back,” before driving away. Shavonte Rice and
Kevin Miller also testified that they never saw Petitioner aim the gun at
anyone. Given that defense counsel put on a number of witnesses in
addition to Mr. Clemons, and who offered both inculpating and
exculpating testimony, Petitioner has not shown a reasonable probability
that the outcome of the trial would have been different if ‘Mook’ had
testified, and he is not entitled to relief on this claim. 6 See English v.
Romanowski, 602 F.3d 714, 729 (6th Cir. 2010) (finding prejudice but

6

See also analysis of the sufficiency of the evidence claim below.

26

only after counsel said that had he learned about a witness’ problems
before trial, he would not have presented key witness at trial).
B. Sufficiency of the Evidence Claim
Petitioner alleges that the state courts unreasonably applied
federal law in concluding there was sufficient evidence to support his
conviction for assault with intent to commit murder. (Dkt. 7 at 48–51.)
It is beyond question that “the Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged.”
In re Winship, 397 U.S. 358, 364 (1970). But “the critical inquiry on
review of the sufficiency of the evidence to support a criminal conviction
. . . [is] whether the record evidence could reasonably support a finding
of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
318 (1979). A court need not “ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt,” but
must ask itself “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Id. at
318–19 (internal citation and footnote omitted) (emphasis in original).
27

More importantly, a federal habeas court may not overturn a state
court decision that rejects a sufficiency of the evidence claim simply
because the federal court disagrees with the state court’s resolution of
that claim. Instead, a federal court may grant habeas relief only if the
state court decision was an objectively unreasonable application of the
Jackson standard. See Cavazos v. Smith, 565 U.S. 1, 2 (2011). In other
words, “the only question under Jackson is whether that finding was so
insupportable as to fall below the threshold of bare rationality.” Coleman
v. Johnson, 566 U.S. 650, 656 (2012).
Under Michigan law, the elements of assault with intent to commit
murder in Michigan are (1) an assault; (2) with an actual intent to kill;
(3) which if successful, would make the killing murder. Warren v. Smith,
161 F.3d 358, 361 (6th Cir. 1998) (quoting People v. Plummer, 229 Mich.
App. 293, 305 (1998)).
The intent to kill element does not equate with murder. Warren,
161 F.3d at 361 (citing People v. Taylor, 422 Mich. 554 (1985)). But “[a]
specific intent to kill is the only form of malice that supports a conviction
of assault with intent to commit murder.” Johnigan v. Elo, 207 F. Supp.
2d. 599, 608 (E.D. Mich. 2002) (citing Maher v. People, 10 Mich. 212, 216–
28

17 (1862)). “A finding that defendant had formed the specific intent to
kill when he pointed his weapon at the victim is sufficient to support a
conviction of assault with intent to commit murder.” Id. (citing People v.
Bailey, 451 Mich. 657, 667, 669 (1996); People v. Gjidoda, 140 Mich. App.
294, 297 (1985)).
In determining intent, the trier of fact “may, and should take into
consideration the nature of the defendant’s acts constituting the assault;
the temper or disposition of mind with which they were apparently
performed, whether the instrument and means used were naturally
adapted to produce death, his conduct and declarations prior to, at the
time, and after the assault, and all other circumstances calculated to
throw light upon the intention with which the assault was made.” Taylor,
422 Mich. at 568 (quoting Roberts v. People, 19 Mich. 401, 415–16 (1870);
Maher v. People, 10 Mich. 212, 217–18 (1862)).
The Michigan Court of Appeals rejected Petitioner’s sufficiency of
the evidence claim as follows:
Moreover, a review of the evidence demonstrates that there
was sufficient evidence to support defendant’s conviction.
Defendant drove to the apartment complex with a gun
because he had been robbed at that location a couple days
prior. He drove by the three victims, paused, and looked in
29

their direction. He then made a u-turn and drove on the
sidewalk until he was near the victims. He stated, “yaw
thought I was playing and I told you I will be right back.” He
then fired multiple shots in the victims’ direction, hitting one
of them in the forehead. Clemons testified that before
defendant shot him in the forehead, defendant looked directly
at him and deliberately fired two more shots.
Thus, there was sufficient evidence that defendant committed
an assault, he had the intent to kill, and the killing would
have been a murder. While there was conflicting evidence
about whether defendant shot the bullets up in the air, all
conflicts in the evidence are resolved in favor of the
prosecution and we will not second-guess the jury’s
determinations regarding the weight or credibility of the
evidence. Therefore, we find that defendant’s convictions were
supported by legally sufficient evidence.
Harper, 2013 WL 4766677, at *9–10 (internal citations omitted).
It is clear that there was sufficient evidence for a rational trier of
fact to conclude that Petitioner specifically intended to kill the three
victims.

At most, Petitioner points out conflicting testimony, but a

federal habeas court has “no license to redetermine the credibility of the
witnesses whose demeanor was observed at trial.”

Marshall v.

Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder
to weigh the probative value of the evidence and resolve any conflicts in
testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992) (citing
30

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly, Petitioner is
not entitled to relief on this claim. See Tyler v. Mitchell, 416 F.3d 500,
505 (6th Cir. 2005).
C. Prosecutorial Misconduct
Petitioner alleges that the prosecutor improperly commented on the
credibility of several defense witnesses during closing arguments, and
the state courts erred in finding he was not entitled to a new trial based
on this alleged misconduct. (Dkt. 7-1 at 1–3.) Petitioner specifically
argues it was improper for the prosecutor to tell the jury “not to believe
none [sic] of the defense witnesses,” or “had some other motive to testify
and take photos than that of good faith.” (Id. at 2.) Respondent argues
Petitioner procedurally defaulted this claim by failing to object to it at
trial, and the Michigan Court of Appeals’ review of the claim for plain
error constitutes default. (Dkt. 8 at 47.)
Petitioner argues any procedural default should be excused because
the claim “was not rejected on an independent and adequate state
procedural rule.” (Dkt. 11 at 1.)
The Michigan Court of Appeals addressed Petitioner’s allegations
of prosecutorial misconduct as follows:
31

Lastly, in defendant's Standard 4 brief in Docket No. 308639,
he contends that there was prosecutorial misconduct. An
unpreserved claim is reviewed only for plain error affecting
substantial rights. People v. Carines, 460 Mich. 750, 763–764;
597 NW2d 130 (1999). An error must have occurred, it must
be plain, and it must have affected the outcome of the
proceedings. Id.
B. Analysis
Defendant first attacks the prosecution's statements in
closing argument that the jury should not believe the defense
witnesses. However, the prosecution specifically stated that
the jury should not believe these witnesses because there was
no evidence that they were even present at the shooting. A
prosecutor is allowed to present “arguments from the facts
and testimony that the witnesses at issue were credible or
worthy of belief.” People v. Dobek, 274 Mich.App 58, 66; 732
NW2d 546 (2007). The prosecutor did not imply that she had
some type of special knowledge regarding the witnesses'
credibility. Id.
Moreover, while the prosecution did comment on a defense
witness's credibility regarding the pictures she took at the
apartment building, this again was an argument derived from
the evidence. The prosecution noted that this witness did not
see shots being fired and the pictures were not taken at the
time of the crime, so this witness lacked credibility and her
testimony should be given little weight. Because these
comments were arguments based on the evidence at trial,
they were proper. Dobek, 274 Mich.App at 66.

32

Finally, the jury was specifically instructed that the
prosecution's statements were not evidence. “Jurors are
presumed to follow their instructions, and instructions are
presumed to cure most errors.” People v. Abraham, 256
Mich.App 265, 279; 662 NW2d 836 (2003). Defendant has not
established any plain error requiring reversal.
Harper, 2013 WL 4766677, at *10.
“Michigan has a contemporaneous objection rule,” and this rule
“constitutes an adequate and independent state ground for foreclosing
habeas review.” Taylor v. McKee, 649 F.3d 446, 450–51 (6th Cir. 2011).
If an appellate court nonetheless reviews the claim on direct appeal, it is
done under the plain error standard, and is considered “the enforcement
of a procedural default” rather than a ruling on the merits. Hinkle v.
Randle, 271 F.3d 239, 244 (6th Cir. 2001).
Here, it is clear that the Michigan Court of Appeals was enforcing
the contemporaneous objection rule, as evidenced by the court’s
statement that the claim was “unpreserved” and would be reviewed for
plain error. Thus, the court of appeals’ decision rested on an adequate
and independent state ground, and Petitioner’s claim is procedurally
defaulted.

33

D. Sentencing Guidelines Claim
Petitioner’s final claim is that the trial court erred in scoring
Offense Variable 6 at 50 points, arguing the reliance on judge-found facts
violated his Sixth Amendment rights pursuant to Alleyne v. United
States, ___ U.S. ___, 133 S. Ct. 2151 (2013), and the court miscalculated
under state law.
First, Petitioner argues that the trial judge violated his Sixth
Amendment right to a jury trial by using facts that should have been, but
were not, submitted to a jury to score the offense variables and calculate
a sentencing guidelines range.
The “essential Sixth Amendment inquiry is whether a fact is an
element of the crime.” Alleyne, 133 S. Ct. at 2162. And a fact that is an
element must be submitted to a jury and proven beyond a reasonable
doubt if it alters the prescribed statutory maximum.

Blakely v.

Washington, 542 U.S. 296 (2004); Apprendi v. New Jersey, 530 U.S. 466
(2000).

This same rule applies to facts that increase statutorily-

prescribed minimums. Alleyne, 133 S. Ct. at 2155.
Contrary to Petitioner’s claim, Alleyne does not apply to his case
because the trial court did not use judge-found facts to increase either a
34

mandatory minimum or maximum. And neither Apprendi nor Alleyne
hold that any fact that influences judicial discretion must be found by a
jury. Alleyne, 133 S. Ct. at 2163. As set forth above, these holdings
require facts relevant to sentencing to be submitted to a jury only if they
affect whether a defendant must be sentenced to a statutorily-mandated
sentence. See United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014);
see also United States v. James, 575 F. App’x 588, 595 (6th Cir. 2014)
(collecting cases and noting that at least four post-Alleyne unanimous
panels of the Sixth Circuit have “taken for granted that the rule of
Alleyne applies only to mandatory minimum sentences”); Saccoccia v.
Farley, 573 F. App’x 483, 485 (6th Cir. 2014) (“But Alleyne held only that
‘facts that increase a mandatory statutory minimum [are] part of the
substantive offense.’...It said nothing about guidelines sentencing
factors….”).
The Michigan Supreme Court recently held that Michigan’s
Sentencing Guidelines scheme violates the Sixth Amendment right to a
jury trial pursuant to Alleyne. People v. Lockridge, 498 Mich. 358 (2015).
However, Petitioner cannot rely on Lockridge to obtain relief with this
Court. “The AEDPA prohibits use of lower court decisions in determining
35

whether the state court decision is contrary to, or an unreasonable
application of, clearly established federal law.” Miller v. Straub, 299 F.3d
570, 578–79 (6th Cir. 2002). In other words, “Lockridge does not render
the result ‘clearly established’ for purposes of habeas review.” Haller v.
Campbell, No. 1:16-CV-206, 2016 WL 1068744, at *5 (W.D. Mich. Mar.
18, 2016). Further, because the Sixth Circuit has ruled that Alleyne does
not apply to sentencing guidelines factors, reasonable jurists could
disagree about whether Alleyne applies to the calculation of Michigan’s
minimum sentencing guidelines, and “Alleyne therefore did not clearly
establish the unconstitutionality of the Michigan sentencing scheme.”
Id. at *6; see also Perez v. Rivard, No. 2:14-CV-12326, 2015 WL 3620426,
at *12 (E.D. Mich. June 9, 2015). Thus, whether Alleyne applies to
Michigan’s sentencing guidelines is not clearly established, and
Petitioner is not entitled to relief on this ground.
Petitioner next argues the trial court erred in calculating his
sentencing guidelines range. Because the federal constitutional claim is
meritless, Petitioner’s claim of error in scoring is a claim founded on state
law. Errors in the application of state sentencing guidelines are not
sufficient to independently support habeas relief. Kissner v. Palmer, 826
36

F.3d 898, 904 (6th Cir. 2016); see Estelle v. McGuire, 502 U.S. 62, 68
(1991). As such, Petitioner’s challenge to the trial court’s application of
the Michigan sentencing guidelines is not cognizable on federal habeas
review. Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007); Howard
v. White, 76 F. App’x 52, 53 (6th Cir. 2003). Accordingly, Petitioner’s
claim is dismissed.
IV.

Conclusion

The Court denies the petition for a writ of habeas corpus. The Court
also denies a certificate of appealability.

To obtain a certificate of

appealability, a prisoner must make a substantial showing of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this
denial after a district court has rejected a habeas petitioner’s
constitutional claims on the merits, the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims to be debatable or wrong. Slack v. McDaniel, 529
U.S. 473, 484 (2000).
For the reasons stated in this opinion, Petitioner has failed to make
a substantial showing of the denial of his constitutional rights, and the
Court will therefore deny Petitioner a certificate of appealability.
37

The Court further concludes that Petitioner will not be granted
leave to proceed on appeal in forma pauperis because any appeal would
be frivolous. See Fed. R. App. P. 24(a).
V.

Order
Accordingly, the Court DENIES WITH PREJUDICE the petition

for a writ of habeas corpus. (Dkt. 7.)
The Court further DENIES a certificate of appealability and leave
to appeal in forma pauperis.
IT IS SO ORDERED.
Dated: June 29, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on June 29, 2017.
s/Shawna Burns
SHAWNA BURNS
Case Manager

38