Owens v. MacLaren
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Appeal In Forma Pauperis. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Travis Quan Owens,
Case No. 15-cv-10985
Judith E. Levy
United States District Judge
Mag. Judge Anthony P. Patti
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS , DENYING A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN
Correctional Facility in New Haven, Michigan, has filed a pro se
petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. (Dkt.
In his application, Petitioner challenges his conviction of armed
robbery, MICH. COMP. LAWS § 750.529, on six grounds.
For the reasons set forth below, the petition for a writ of habeas
corpus is denied.
The Court amends the caption to reflect the current warden and facility of
Petitioner was convicted of armed robbery following a jury trial in
the Oakland County Circuit Court, and sentenced as a habitual
offender, fourth offense, to a term of twenty to forty years. People v.
Owens, No. 29-7315, 2011 WL 2464193, at *1 (Mich. Ct. App. June 21,
2011). This Court relies on the facts recited by the trial court, which
are presumed correct pursuant to 28 U.S.C. § 2254(e)(1):2
At trial, Defendant admitted to having committed the store
robbery and only denied that he was armed. The store was
equipped with multi-angle cameras that captured the entire
event on video. Thought it is clear from this Court’s
videotaped proceedings that the video was shown to the jury,
the security video image is not visible on this Court’s video.
The prosecutor took the victims through the video in a
narrative fashion and stopped at times to zoom in on the
The evidence showed that, on April 9, 2009, Defendant
entered the Advance America cash advance store in Pontiac,
Michigan to inquire about his account. He told the assistant
manager, Cynthia Miles, that his last name was “Owens”
and he recited eight of the nine digits of his social security
number. His account could not be located on the computer,
yet he remained in the store. The store manager, Shelly
Petitioner has submitted his own facts with the habeas petition. (Dkt. 1.)
However, he has not indicated that the trial court’s version is incorrect, which he
must do by clear and convincing evidence before this Court may discredit the
factual findings of the trial court. 28 U.S.C. § 2254(e)(1.)
Hall, eventually asked Defendant to leave, but he stayed.
After other customers left the store, Defendant grabbed Ms.
Hall by the shirt with his left hand, pulled her close to him
and put a knife that he was holding in his right hand to the
left side of her throat. Ms. Hall testified that she saw the
blade of the knife as Defendant brought it up to her throat
and felt it on her neck. Defendant ordered Ms. Miles to give
him the store’s cash and when she hesitated, Defendant
threatened to cut Ms. Hall “real bad.” When Ms. Miles put
the money on a table, Defendant shifted his grip and held
both Ms. Hall’s shirt and the knife with his right hand while
he reached down for the money with his left hand, all the
while keeping the blade to Ms. Hall’s throat. When he
dropped some of the money, Ms. Hall leaned down with him
because he still held the knife to her throat. Though she
could not describe the handle of the knife, Ms. Hall indicated
the length of the blade with her hands. She testified that she
had no doubt in her mind that the object Defendant held to
her neck was a knife. She also stated that Defendant told
them that he had seen their faces and threatened to kill the
women if they called the police. Ms. Miles testified that she
believed Defendant reached out and grabbed Ms. Hall’s shirt
with his left hand. Defendant also ordered Ms. Miles to give
him the cash or he would cut Ms. Hall. Though she observed
Defendant’s hand at Ms. Hall’s throat, Ms. Miles did not
observe a weapon because Ms. Hall’s hair was hanging down
over her neck. Ms. Miles testified that she gave Defendant
the money because she did not want Ms. Hall to be injured
and that, based on the look on Ms. Hall’s face, she did not
want to take a chance. Ms. Miles also testified that
Defendant threatened to come back and kill the women if
they called the police. The testimony further showed that,
after Defendant left the store, the women called the police
and gave their witness statements. While the police were
present, the women checked the files in a filing cabinet and
looked under the name “Owens.” They discovered a
photocopy of Defendant’s driver’s license and his full social
security number, which matched the numbers Defendant
had given them. Defendant was arrested on a warrant and
bound over for trial. The jury verdict form listed the option of
finding Defendant guilty of the lesser offense of unarmed
(Opinion and Order, Oakland Cty. Cir. Ct. (Mar. 8, 2013).)
Petitioner’s conviction was affirmed on appeal. Owens, 2011 WL
2464193. The Michigan Supreme Court denied his application for leave
to appeal. People v. Owens, 490 Mich. 913 (2011).
Petitioner then filed a post-conviction motion for relief from
judgment pursuant to MICH. CT. R. 6.500, which was denied. People v.
Owens, No. 09-226671-FC (Oakland Cty. Cir. Ct. Mar. 8, 2013). The
Michigan appellate courts denied Petitioner leave to appeal. People v.
Owens, No. 318067 (Mich. Ct. App. Mar. 14, 2014); lv. den. 497 Mich.
902 (2014); reconsideration den. 497 Mich. 956 (2015).
Petitioner seeks a writ of habeas corpus on the following
I. Defense trial counsel was constitutionally ineffective in
failing to object to the prosecutor vouching for the
complainant’s credibility and making an improper civic duty
II. Defendant-Appellant was denied his Sixth Amendment
right to the effective assistance of appellate counsel and his
Fourteenth Amendment due process right to a full and fair
appeal of right where appellate counsel failed to raise
significant and obvious issues on his appeal of right.
III. Defendant-Appellant was denied his Sixth Amendment
right to the effective assistance of trial counsel and his Sixth
Amendment right to present a defense where the trial court
failed to obtain an expert witness to enhance the digital
video footage of the robbery, which, if investigated would
have shown that the defendant-appellant was carrying a
IV. The failure of trial counsel to investigate defendant’s
competence and medication use at the time of trial denied
defendant effective assistance.
V. Defendant’s rights to trial by jury, due process and the
effective assistance of counsel were violated by the
inadequate responses of the trial court and defense counsel
to a juror who was apparently asleep during trial.
VI. The trial court violated defendant-appellant’s due
process rights by failing to fully and properly administer the
jury oath in accordance with the governing statute and court
(Dkt. 1 at 10.)
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
law, as determined by the Supreme Court of the United
(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 state court’s decision is ‘contrary to’ . . . clearly established law
if it ‘applies a rule that contradicts the governing law set forth in
[Supreme Court] cases’ or if it ‘confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
application occurs when the state court’s decision is “more than
incorrect or erroneous”; “the state court’s application must have been
‘objectively unreasonable.’” White v. Woodall, ___ U.S. ___, 134 S. Ct.
1697, 1702 (2014) (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
“AEDPA  imposes a ‘highly deferential standard for evaluating
state-court rulings,’ . . . and ‘demands that state-court decisions be
given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010)
(quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam); see also Renico, 559 U.S. at
773 n.1 (noting that the Supreme Court has historically viewed
AEDPA’s standard for reviewing state court decisions as “deferential”).
Thus, pursuant to section 2254(d), “a habeas court must determine
what arguments or theories supported or . . . could have supported, the
state court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of the Supreme Court.
Harrington v. Richter, 562 U.S. 86, 102 (2011).
“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.” Woods v. Etherton, ___ U.S. ___, 136 S. Ct. 1149,
1151 (2016) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Finally, habeas relief is not appropriate “unless each ground that
supported the state court’s decision is examined and found to be
unreasonable under the AEDPA.” Wetzel v. Lambert, 565 U.S. 520, 525
(2012) (emphasis in original).
A. Statute of Limitations
Respondent argues that this petition is barred by the statute of
limitations because it was not filed within the one-year statute of
limitations period imposed by 28 U.S.C. § 2244(d)(1).
Respondent argues that Petitioner is not entitled to equitable tolling
because his state-court collateral attack was filed after the one-year
statute of limitations expired.
(Dkt. 5 at 31-38.)
argues that Petitioner has defaulted his third, fourth, and fifth claims
because he failed to raise the claims on direct appeal. (Dkt. 5 at 39.)
Although the issue of whether a claim is procedurally barred
should ordinarily be resolved first, “judicial economy might counsel
giving the [merits] question priority,” such as where the merits issue is
“easily resolvable” and the procedural bar involves “complicated issues
of state law.” Lambrix v. Singletary, 520 U.S. 518, 525 (1997); Bales v.
Bell, 788 F.3d 568, 573 (6th Cir. 2015). And because the statute of
limitations is not a jurisdictional bar to habeas review, a federal court
may, in the interest of judicial economy, proceed to the merits of a
habeas petition. LaMar v. Houk, 798 F.3d 405, 415 (6th Cir. 2015).
Here, the petition is resolvable against Petitioner on the merits
regardless of the timeliness of the petition. Accordingly, the Court will
assume the petition was timely and proceed to the other procedural
default and merits arguments. See Ahart v. Bradshaw, 122 F. App’x
188, 192 (6th Cir. 2005).
B. Ineffective Assistance of Trial Counsel
Petitioner alleges that trial counsel was ineffective by 1) failing to
object to the prosecutor vouching for a witness and making improper
civic duty statements during closing arguments, 2) failing to obtain an
expert witness to enhance the digital video footage, 3) failing to
investigate Petitioner’s competence to stand trial, and 4) inadequately
responding to a juror who was allegedly asleep during trial. (Dkt. 1 at
To show that he was denied the effective assistance of counsel
under federal constitutional standards, a petitioner must satisfy a twoprong test. First, the petitioner must demonstrate that, considering all
of the circumstances, counsel’s performance was so deficient that the
attorney was not functioning as the “counsel” guaranteed 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 behavior falls within the wide range of reasonable professional
assistance. Id. at 689. In other words, a petitioner must overcome the
presumption that, under the circumstances, the challenged action might
be sound trial strategy. Id. Second, the petitioner must show that such
performance prejudiced his defense.
Id. at 692.
prejudice, a petitioner bears the burden of showing that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Harrington 562 U.S. at 111.
Id. at 694; see
More importantly, on habeas review, “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
Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan,
550 U.S. 465, 473 (2007)). “The pivotal question is whether the state
court’s application of the Strickland standard was unreasonable. This
is different from asking whether defense counsel’s performance fell
Furthermore, “because the Strickland standard is a general standard, a
state court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.” Knowles, 556 U.S. at 123
(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
In his first claim, Petitioner alleges that the prosecutor vouched
for the victim’s testimony and made civic-duty arguments during
Petitioner cites to a comment made by the prosecutor during
closing argument, which is as follows:
And she certainly isn’t going to come in here, raise her right
hand to swear to tell the truth, the whole truth and nothing
but the truth, and then not tell the truth?
(Dkt. 1 at 21 (quoting JT 242-43).)
A prosecutor may not express a personal opinion concerning the
guilt of a defendant or the credibility of trial witnesses, because doing so
“invit[es] the jurors to convict the defendant on a basis other than a
neutral independent assessment of the record proof,”
Russell, 181 F.3d 731, 737 (6th Cir. 1999) (internal citations omitted),
and it “may induce the jury to trust the Government's judgment rather
than its own view of the evidence.” Wogenstahl v. Mitchell, 668 F.3d
307, 332 (6th Cir. 2012). However, a prosecutor is free to argue that the
jury should arrive at a particular conclusion based upon the record
evidence. Caldwell, 181 F.3d at 737. The test for improper vouching for
a witness is whether the jury could reasonably believe that the
prosecutor was indicating a personal belief in the witness’ credibility.
United States v. Causey, 834 F.2d 1277, 1283 (6th Cir. 1987).
“[G]enerally, improper vouching involves either blunt comments, or
comments that imply that the prosecutor has special knowledge of facts
not in front of the jury or of the credibility and truthfulness of witnesses
and their testimony.” Wogenstahl, 688 F.3d at 328 (quoting United
States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999)). It is exceedingly
rare for the Sixth Circuit to grant habeas relief on an improper
vouching claim. See generally Byrd v. Collins, 209 F.3d 486, 537, n. 43
(6th Cir. 2000). Moreover, “the Supreme Court has never specifically
held that a prosecutor’s vouching for the credibility of a witness
resulted in a denial of due process.” Wilson v. Bell, 368 F. App’x 627,
632 n. 3 (6th Cir. 2010).
Even on direct appeal from a federal
conviction, the Sixth Circuit has held that to constitute reversible error,
a prosecutor’s alleged misconduct of arguing his or her personal belief,
in a witness’ credibility or in a defendant’s guilt, must be flagrant and
not isolated. United States v. Humphrey, 287 F.3d 422, 433 (6th Cir.
In rejecting Petitioner’s claim that the prosecutor improperly
vouched for the witness, the Michigan Court of Appeals stated the
In this matter, the prosecutor stated, during closing
And think about this, ladies and gentlemen. The Judge is
going to read you an instruction on credibility, credibility of
witnesses. Think about Shelly Hall. Put yourself in her
position. Think about what possible motive, what possible
bias she would have in this particular case to say there was
a knife when there was not? Is she really going to be
mistaken about an object that's placed at her throat for
approximately one minute? Absolutely not, ladies and
And she certainly isn't going to come in here, raise her right
hand to swear to tell the truth, the whole truth and nothing
but the truth, and then not tell the truth[.] When the other
evidence corroborates the fact that she did have a knife up
against her throat. That's what she told the police five
minutes after the incident occurred, and she's told you under
oath what she saw.
The prosecutor's argument did not imply that he had any
special knowledge or facts. Rather, the argument urged the
jury to consider the circumstances that had been presented
at trial and conclude that the complainant was credible. The
prosecutor's argument was not improper.
Owens, 2011 WL 2464193, at *1.
As set forth by the court of appeals, the prosecutor did not imply
that he had any special knowledge about the victim that had not been
presented to the jury.
When viewed in context, the prosecutor was
arguing that his witness has no reason or motivation to lie, and should
be found credible given the facts of the incident presented at trial.
Thus, the prosecutor was not improperly vouching for the witness, and
it was not objectively unreasonable for trial counsel not to object to
these statements. See Wilson v. Bell, 368 F. App’x 627, 636 (6th Cir.
Petitioner next alleges that trial counsel was ineffective by failing
to object to the prosecutor’s “civic duty” statements, arguing the
following were improper because they implied the jurors needed to
convict Petitioner of the higher charge, as he was a danger to the
“This case is about accountability and this defendant needs
to be held accountable for the decisions that he made on that
particular day.” (JT 247).
Likewise, in the rebuttal
argument, the prosecutor told the jury, among other things,
that Mr. Owens “chose to rob the store. He chose to robe
(sic) it with a knife and he needs to be held accountable for
hat (sic) decision.” (JT 259).
(Dkt. 1 at 8–9.)
The Sixth Circuit has held that “[u]nless calculated to incite the
passions and prejudices of the jurors, appeals to the jury to act as the
community conscience are not per se impermissible.” Byrd, 209 F.3d at
539 (quoting United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir.
The Michigan Court of Appeals rejected Petitioner’s argument
that the prosecutor’s remarks were improper:
We similarly reject defendant’s contention that the
prosecutor made an improper civic duty argument. A civic
duty argument urges the jury to convict for the good of the
community, appeals to the jurors’ fears and prejudices, and
thereby injects issues broader than the guilt or innocence of
the accused. See Bahoda, 448 Mich. at 282. The prosecutor
in this case urged the jury to hold defendant accountable,
i.e., personally responsible for his actions. The argument was
properly focused on defendant's personal guilt or innocence,
and not the benefit of the community. Thus, the argument
was not improper.
Owens, 2011 WL 2464193, at *1.
Having reviewed the record, the Court concludes that the
Michigan Court of Appeals reasonably applied federal law to the
misconduct claim. The prosecutor’s remarks were focused on holding
Petitioner responsible for conduct reflected in the evidence presented at
trial. Additionally, the trial court’s instruction to the jury that (1) the
verdict should be based only on the evidence properly admitted during
trial, (2) the prosecutor’s statements and arguments are not evidence,
and (3) they must not let prejudice or sympathy influence their decision
(JT, pp. 259-263), defeats Petitioner’s claim. See Knapp v. White, 296 F.
Supp. 2d 766, 776 (E.D. Mich. 2003).
Accordingly, trial counsel’s failure to object was not objectively
unreasonable, and Petitioner is not entitled to relief on this claim.
In his third claim, Petitioner argues that trial counsel was
ineffective for failing to obtain an expert witness to enhance the digital
video footage of the robbery, which allegedly would have shown that
Petitioner was carrying a money bag and not a knife.
Respondent argues that Petitioner’s third to fifth claims are
procedurally defaulted because he failed to raise them on direct review.
Petitioner first raised these claims in his postconviction motion for
relief from judgment, and the state trial judge denied them, in part
because Petitioner failed to show cause and prejudice, as required by
MICH. CT. R. 6.508(D)(3), to excuse the fact that these claims were not
raised in the direct appeal. (Dkt. 6-7.)
“A federal court will not review the merits of claims . . . that a
state court declined to hear because the prisoner failed to abide by a
state procedural rule” provided that the procedural rule is an adequate
and independent state ground. Martinez v. Ryan, 566 U.S. 1, 9 (2012).
To be an adequate and independent state ground, the procedural rule
must be “adequate to support the judgment and . . . firmly established
and consistently followed.” Id. If the state court bases its decision on a
such a rule, “[a] state prisoner may overcome the prohibition on
reviewing procedurally defaulted claims if he can show ‘cause’ to excuse
his failure to comply with the state procedural rule and ‘actual
prejudice resulting from the alleged constitutional violation.’” Davila v.
Davis, ___ U.S. ___, 137 S. Ct. 2058, 2064-2065 (2017) (quoting
Wainwright v. Sykes, 433 U.S. 72, 84 (1977)).
The Sixth Circuit has held that MICH. CT. R. 6.508(D)(3) is an
adequate and independent state ground for procedural default.
Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010) (describing MICH.
CT. R. 6.508(D)(3) as a “procedural-default rule”). Petitioner could have
brought his ineffective assistance claims on direct review, but did not do
so, as required by Michigan procedural rules, and is therefore
procedurally defaulted unless he can demonstrate cause and prejudice.
First, with respect to the claim that trial counsel was ineffective
for failing to obtain an expert, Petitioner attached an affidavit to his
application for leave to appeal the denial of the motion for
postconviction relief to the Michigan Supreme Court, and references it
in his petition. (See Dkt. 6-11; Dkt. 1 at 29.) No such affidavit was
presented to the trial court,3 and the United States Supreme Court has
held that habeas review under 28 U.S.C. §2254(d) is “limited to the
record that was before the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Therefore, the
Court is precluded from considering the affidvait in reviewing
Petitioner’s ineffective assistance of counsel claim and in determining
whether the state court unreasonably applied federal law. Cf. Campbell
v. Bradshaw, 674 F.3d 578, 590 n.3 (6th Cir. 2012) (declining to
consider testimony taken in federal evidentiary hearing because it was
not part of the state court record).
Petitioner references an affidavit in his motion for postconviction relief, but the
record reflects that none was actually submitted. As the trial court wrote:
Defendant offers no explanation of how additional testimony by a
security camera video expert would have assisted his defense, and no
such explanation is apparent from the record. He simply claims that
enhancement of the video would show that he had a money bag in his
hand. However, it is just as probable that enhancement of the video
would have confirmed that the pointed shape seen in his hand on the
“fairly clear video” was in fact a knife.
People v. Owens, No. 09-226671-FC, 6.
Petitioner has submitted no evidence to indicate that an expert
was available, would testify in his favor, or what the testimony would
be. And a habeas petitioner’s claim that trial counsel was ineffective for
failing to call an expert witness cannot be based on speculation; it must
be supported by evidence demonstrating the effect that the expert
would have on the outcome. See Kelly v. McKee, No. 16-1572, 2017 WL
2831019 at *5 (6th Cir. January 24, 2017); Keith v. Mitchell, 455 F.3d
662, 672 (6th Cir. 2006). Thus, Petitioner has not demonstrated that
his claim that an expert would help him has merit and that trial
counsel was ineffective for failing to obtain an expert.
Petitioner has not shown prejudice to excuse his default.
In his fourth claim, Petitioner argues that trial counsel failed to
request a forensic center evaluation for competence, knowing that
“Petitioner was under the influence of such psychotropic medications as
Seroquil, and an additional antidepressant medication.” (Dkt. 1 at 20.)
A defendant may not be put to trial unless he or she has a
sufficient present ability to consult with his or her lawyer with a
reasonable degree of rational understanding, and a rational—as well as
a factual—understanding of the proceedings against him.
Gonzales, 568 U.S. 57, 66 (2013).
A state may presume that a
defendant is competent to stand trial and require him to shoulder the
burden of proving his incompetence by a preponderance of the evidence.
Cooper v. Oklahoma, 517 U.S. 348, 355 (1996). The Supreme Court has
“repeatedly and consistently recognized that the criminal trial of an
incompetent defendant violates due process,” Ryan, 568 U.S. at 65
(quoting Cooper, 517 U.S. at 354). Thus, a habeas petitioner may make
a procedural due process claim based on competency by alleging that
the state trial court failed to conduct a competency hearing after the
petitioner’s mental competency was put in issue.
See, e.g., Wade v.
Romanowski, 12-14713, 2016 WL 1573261 (E.D. Mich. April 19, 2016).
However, to succeed on the procedural claim, a habeas petitioner must
demonstrate that the state “court’s application of law to facts [in a
competency hearing] was objectively unreasonable,” Finley v. Rogers,
116 Fed. App’x 630, 635 (6th Cir. 2004), and that the trial court’s
decision was “clearly wrong.” Franklin v. Bradshaw, 695 F.3d 439, 449
(6th Cir. 2012).
A full competency hearing is necessary only when a court has a
reason to doubt a defendant’s competency to stand trial. See United
States v. Pitts, No. 16-2787, 2017 WL 2820944, at *3 (6th Cir. Apr. 28,
2017). “The due-process right to a fair trial is violated by a court’s
failure to hold a proper competency hearing where there is substantial
evidence of a defendant’s incompetency.” Franklin, 695 F.3d at 447.
The question for a reviewing court is “[w]hether a reasonable judge,
situated as was the trial court judge whose failure to conduct an
evidentiary hearing is being reviewed, should have experienced doubt
with respect to competency to stand trial.” Mackey v. Dutton, 217 F.3d
399, 413-14 (6th Cir. 2000) (quoting Williams v. Bordenkircher, 696
F.2d 464, 467 (6th Cir. 1983)) (additional quotation omitted).
At the time of trial, Michigan law stated that a defendant was
presumed competent, and the proper medical use of psychotropic drugs
or other medications would not deem a defendant incompetent to stand
trial. MICH. COMP. LAWS §§ 330.2020(1), (2).
Here, Petitioner has never alleged that the various medications
rendered him incompetent to stand trial. He has also failed to provide
evidence that the alleged medications rendered him incompetent either
at the beginning or during his trial, and failed to provide an affidavit
from trial counsel to substantiate his claim that he informed counsel of
his medications, and that the medications rendered him incompetent to
stand trial. Speculation alone is insufficient to demonstrate prejudice.
Hodge v. Haeberlin, 579 F.3d 627, 640 (6th Cir. 2009). This is especially
true given that a state court’s finding of competency is entitled to a
presumption of correctness unless a petitioner provides clear and
convincing evidence to the contrary. Mackey, 217 F.3d 412. And, again,
Petitioner has presented no evidence to rebut the findings of the trial
Accordingly, Petitioner cannot show prejudice to excuse his
procedural default of this claim.
In his fifth claim, Petitioner argues that he was denied his due
process rights when a juror slept through a portion of the proceedings.
Petitioner further claims that trial counsel was ineffective for failing to
adequately bring this to the judge’s attention.
A state trial court’s factual determination that a juror did not
sleep during a habeas petitioner’s trial is presumed correct absent clear
and convincing evidence to the contrary. See Mason v. Mitchell, 320
F.3d 604, 637 (6th Cir. 2003).
The trial court rejected Petitioner’s due process claim as follows:
This Court has reviewed the videotape recording of the
portion of the trial referenced by Defendant. The video
shows Defendant looking in the direction of the jury box for
much of the testimony. Though the courtroom’s video
camera does not record the jury box, the following relevant
events occurred on the videotape at the noted times:
Officer-in-Charge pours a glass of water.
Off camera: (coughing)
Off camera: (coughing)
Off camera: (coughing)
Defendant leans toward counsel and gestures
toward the jury box.
Defendant talking to counsel
The Prosecutor: “Your Honor, may we briefly
approach the bench?”
2:35:13- Bench Conference
The Court: “Does anyone need a drink of water?
Is someone coughing and need of a drink of water? Can we
get this juror a drink of water , please?”
As the video shows, less than 30 seconds passed between the
time Defendant gestured toward the jury with his thumb
and the proceedings were halted. The record also shows that
Defendant was still talking to counsel when the prosecutor
asked to approach the bench. The attorneys and this Court
held a discussion and the matter apparently was resolved to
The record does not substantiate Defendant’s suspicion that
a juror may have been sleeping and, in fact. demonstrates
that it is more plausible that a juror was simply coughing. It
does not appear that a juror actually missed any testimony.
Furthermore, counsel cannot be deemed ineffective for
“doing nothing” when the prosecutor brought the matter to
the Court’s attention simultaneous to Defendant allegedly
making the matter known to his counsel.
Owens, 09-226671-FC, 9-10.
Petitioner has failed to offer any clear and convincing evidence to
rebut the trial court judge’s factual determination that none of the
jurors slept through the trial. This Court must therefore defer to the
trial court judge’s factual determination. Because Petitioner has failed
to show that any jurors slept through his trial, Petitioner is unable to
establish prejudice that would excuse his procedural default.
United States v. Terfa, 12 F. Appx 308, 310 (6th Cir. 2001).
Accordingly, Petitioner is not entitled to habeas relief on this claim.
C. Claim 2: Ineffective assistance of appellate counsel
Petitioner contends that appellate counsel was ineffective for
failing to raise his third through fifth claims (discussed above) in his
The Sixth Amendment guarantees a defendant the right to the
effective assistance of counsel on the first appeal by right. Lafler v.
Cooper, 566 U.S. 156, 165 (2012); Evitts v. Lucey, 469 U.S. 387, 396-397
constitutional duty to raise every nonfrivolous issue requested by a
defendant. Davila v. Davis, ___ U.S. ___, 137 S. Ct. 2058, 2067 (2017).
As set forth above, Petitioner has failed to show prejudice to
excuse his procedural default because the claims lack merit.
Accordingly, Petitioner has not established that appellate counsel’s
unreasonable, and is not entitled to relief on this claim. See Martin v.
Mitchell, 280 F.3d 594, 606 (6th Cir. 2002) (noting that ineffective
assistance of appellate counsel cannot constitute cause if the underlying
claims have no merit).
D. Failure to administer the jury oath
In his final claim, Petitioner argues that the trial court judge
violated his due process rights by failing to properly administer the jury
Petitioner presented this claim as a “new” claim before the
Michigan Supreme Court, and did not present it to the trial court or
court of appeals. (Dkt. 6-11 at 35.)
A habeas petitioner must exhaust remedies in the state courts by
fairly presenting the federal claims at the first possible opportunity
within “one complete round of the State's established appellate review
process.” Carter v. Mitchell, 693 F.3d 555, 564 (6th Cir. 2012) (internal
quotations omitted); see 28 U.S.C. § 2254(b)(1).
In this case, Petitioner filed his motion for relief from judgment in
the trial court, and no longer has an available state court remedy.
MICH. CT. R. 6.502(G); 28 U.S.C. § 2254(c). And when a prisoner fails to
present his or her claims to the state courts, and has no remaining state
remedy, the claims are considered exhausted by procedural default.
Kelly v. Lazaroff, 846 F.3d 819, 827-28 (6th Cir. 2017). Importantly,
“the procedural bar that gives rise to exhaustion provides an
independent and adequate state-law ground for the conviction and
sentence, and thus prevents federal habeas corpus review of the
defaulted claim.” Id. at 828 (quoting Gray v. Netherland, 518 U.S. 152,
162 (1996)). Because Petitioner presents this claim for the first time to
the Michigan Supreme Court the claim is procedurally defaulted, and
cannot be reviewed in a federal habeas corpus petition. See id.
Even if the claim was not procedurally barred and the trial court
judge did not properly administer the jury oath, Petitioner would not be
entitled to habeas relief.
There is no Supreme Court precedent
establishing a federal constitutional right that requires a state trial
court to administer an oath to an empaneled jury. See Baldwin v. State
of Kansas, 129 U.S. 52, 56 (1889) (finding no federal issue in the
allegedly improper swearing of a state court jury); Spearman v. Birkett,
Case No. 05-40006, 2006 WL 6032120, at *11 (E.D. Mich. Mar. 31, 2006)
(petitioner not entitled to habeas relief based on the jury being given a
defective oath in his state court prosecution, in the absence of any
federal case law which requires that “a particular form of oath be sworn
to by the jurors as a matter of federal constitutional law”); Rodriguez v.
Brown, No. 11-1246, 2011 WL 4073748, at *9-10 (E.D.N.Y. Sept. 13,
2011) (habeas petitioner not entitled to habeas relief on claim jurors not
properly sworn in at his state court trial, because “there is no Supreme
Court mandate regarding the proper method of administering an oath
to a jury”); Pinkney v. Senkowski, Case No. 03-4820, 2006 WL 3208595,
at *6 (S.D.N.Y. Nov. 3, 2006) (holding that even if petitioner established
that the jurors in his state court criminal case had not been properly
sworn in, he would not be entitled to habeas relief because “the writ
may be granted only to remedy a violation of federal law”).
Given that the Supreme Court has never found that a state trial
court is required to administer an oath to an empaneled jury, the
rejection of Petitioner’s improper jury oath claim by the Michigan
Supreme Court would not be an unreasonable application of clearly
established federal law. See Wright v. Van Patten, 552 U.S. 120, 126
(2008); Carey v. Musladin, 549 U.S. 70, 77 (2006).
Petitioner is not entitled to relief on this claim.
For the reason set forth above, the Court will deny the petition for
a writ of habeas corpus.
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 requires that the Court “must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.”
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), which is satisfied only if reasonable jurists could debate
whether, or agree that, the petition should have been resolved in a
different manner, or that the issues presented were adequate to deserve
encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473,
For the reasons set forth above, reasonable jurists would not find
this Court’s assessment of Petitioner’s claims to be debatable or wrong,
and Petitioner is not entitled to a certificate of appealability.
Millender v. Adams, 187 F. Supp. 2d 852, 880 (E.D. Mich. 2002).
The Court further concludes that Petitioner should not be granted
leave to proceed in forma pauperis on appeal, as any appeal would be
frivolous. See Fed. R. App. P. 24(a).
For the reasons set forth above, the Court DENIES WITH
PREJUDICE the petition for a writ of habeas corpus. (Dkt. 1.)
The Court further DENIES a certificate of appealability and leave
to appeal in forma pauperis.
IT IS SO ORDERED.
Dated: September 21, 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 September 21, 2017.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?