Zora v. Winn
MEMORANDUM OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus, 9 Denying the MOTION for Evidentiary Hearing, and Denying a Certificate of Appealability - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Salam Shaker Zora,
Case No. 15-cv-11550
Judith E. Levy
United States District Judge
Mag. Judge R. Steven Whalen
OPINION AND ORDER DENYING THE PETITION FOR A WRIT
OF HABEAS CORPUS , DENYING THE MOTION FOR AN
EVIDENTIARY HEARING , AND DENYING A CERTIFICATE
Petitioner Salam Zora, confined at the Saginaw Correctional
Facility in Freeland, Michigan, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 through his attorneys Daniel E.
Harold, Mayer Morganroth, and Stuart Friedman. (Dkt. 1.) He has
also filed a motion for an evidentiary hearing.
challenges his conviction for second-degree murder, MICH. COMP. LAWS §
750.317, and carrying or possessing a gun when committing a felony,
MICH. COMP. LAWS § 750.227b.
For the reasons set forth below, the petition for a writ of habeas
corpus is denied.
Further, the motion for an evidentiary hearing is
denied, and a certificate of appealability will not issue.
Petitioner was charged with first-degree murder and possessing a
firearm during a felony after killing his brother-in-law, Najem Matti.
On September 25, 2009, a jury found Petitioner guilty of second degree
murder and felony-firearm.
The 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). See Wagner v. Smith, 581
F.3d 410, 413 (6th Cir. 2009).
Defendant’s convictions arise from the January 23, 2009,
shooting death of his brother-in-law. The victim and his wife
(defendant’s sister) previously lived in defendant’s home.
After they moved out, defendant discovered that
approximately $250,000 was missing from a hideaway at his
residence. Defendant suspected that the victim stole the
money. On January 20, 2009, defendant confronted the
victim about the money and, according to defendant, the
victim agreed to go to their church later that week to swear
on a Bible to his innocence. Three days later, defendant went
to the victim’s residence unannounced to again discuss the
missing money. Defendant was armed with a gun and was
accompanied by his two brothers. Defendant ultimately shot
the victim five times. Three of the gunshots were to the back
of the victim’s body. There was no evidence of a struggle in
the residence. Defendant presented a claim of self-defense
through himself and his two brothers. The defense theory at
trial was that the victim charged toward defendant while
shouting an Arabic war death cry and while holding a
butcher knife in his raised right hand and a two-pronged
barbecue fork in his left hand.
People v. Zora, No. 296508, 2011 WL 2623384, at *1 (Mich. Ct. App.
July 5, 2011). Petitioner’s conviction was affirmed on appeal. Id., leave
denied 491 Mich. 852 (2012).
Petitioner then filed a post-conviction motion for relief from
judgment, which the trial court denied. People v. Zora, No. 2009-2137FC (Macomb Cty. Cir. Ct. Oct. 28, 2013). The Michigan appellate courts
denied Petitioner leave to appeal. People v. Zora, No. 321508 (Mich. Ct.
App. June 11, 2014); People v. Zora, No. 150070, 497 Mich. 1011 (2015).
Petitioner now seeks a writ of habeas corpus.
argues he was denied his Sixth Amendment right to effective assistance
of counsel because his trial counsel was unprepared, failed to interview
and call several material witnesses, failed to investigate and present
exculpatory evidence, and stipulated to the admission of false evidence.
(Dkt. 1-1 at 19–37.) Next, Petitioner argues he was denied due process
as guaranteed by the Fourteenth Amendment because of prosecutorial
misconduct. The prosecutor at trial allegedly presented false evidence,
concealed evidence, and submitted a false affidavit to the trial court
regarding what the prosecutor did and did not argue at trial. (Id. at 37–
43.) Third, Petitioner claims he was denied his right to a trial by a fair
and impartial jury as guaranteed by the Sixth and Fourteenth
Amendments because the jury was racially and ethnically biased
against him. (Id. at 43–44.) Finally, Petitioner claims his trial was
“fundamentally unfair by virtue of the cumulative constitutional
errors.” (Id. at 44–45.)
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.
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,
405–06 (2000). An “unreasonable application” occurs when a state court
unreasonable” manner. Id. at 410. 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.
“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. Viscotti, 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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
To obtain habeas relief, 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 must be denied relief as long as it
is within the “realm of possibility” that fairminded jurists could find the
state court decision reasonable. See Woods v. Etherton, ___U.S.___, 136
S. Ct. 1149, 1152 (2016).
Petitioner has raised a number of issues in his petition, and
respondent argues that at least some of his claims are procedurally
defaulted. Petitioner has also asked for an evidentiary hearing. Each
of these issues is discussed in detail below.
procedurally defaulted either because he failed to preserve them during
trial or because he raised the claims for the first time in his motion for
post-conviction review and failed to show cause or prejudice, as required
by Mich. Ct. R. 6.508(D), that would excuse him for failing to raise the
claims on direct appeal.
The Supreme Court has held there is no rule “that the proceduralbar issue must invariably be resolved first” or before the merits of the
potentially defaulted claims. Lambrix v. Singletary, 520 U.S. 518, 525
“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.” Id. Thus, a federal court may “proceed directly to
the merits of [the] claim” when “the question of procedural default
presents a complicated question of [state] law” or “is unnecessary to
[the] disposition of the case.” Hudson v. Jones, 351 F.3d 212, 216 (6th
In this case, many of the allegedly procedurally-defaulted claims
are similar or related to the non-defaulted claims. As set forth below,
consideration of the non-defaulted claims will dispose of the allegedly
defaulted claims and all of the claims lack merit, making the procedural
default issue “unnecessary to [the] disposition of the case.” Hudson, 351
F.3d at 216. Accordingly, the Court will adjudicate the merits of all of
Ineffective Assistance of Counsel
Petitioner first alleges he was denied the effective assistance of
trial counsel for numerous reasons, as set forth below.
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
“Strickland’s test for prejudice is a demanding one.
likelihood 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
§ 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
unreasonableness under § 2254(d). When § 2254(d) applies,
the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential
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,
Petitioner first argues that his trial counsel, Carl Marlinga, was
not prepared for trial.
Petitioner has submitted Mr. Marlinga’s
testimony from the post-trial evidentiary hearing – known as a Ginther
hearing – that counsel felt tired and ill-prepared for trial because he
had recently finished several other trials and was engaged in other
matters. Mr. Marlinga also submitted a post-trial affidavit in which he
claimed he was ineffective at trial. (Dkt. 1-15.)
Strickland “calls for an inquiry into the objective reasonableness
of counsel’s performance, not counsel’s subjective state of mind.”
Harrington, 562 U.S. at 110. Because a court’s inquiry asks whether
representation fell below an objective standard of reasonableness, a
defense attorney’s subjective belief that his or her representation was
inadequate or ineffective “plays no role” in determining whether a
habeas petitioner was denied the effective assistance of counsel. Dugas
v. Coplan, 428 F.3d 317, 328 n.10 (1st Cir. 2005).
excellent lawyers would stipulate to their own ineffectiveness if it might
help win a client’s release.” Harris v. United States, 367 F.3d 74, 81 (2d
Cir. 2004). Thus, Mr. Marlinga’s post-trial testimony and affidavit are
not sufficient to show that the state court unreasonably applied
Strickland in finding Mr. Marlinga was not ineffective. People v. Zora,
2011 WL 2623384, at *5.
Accordingly, Petitioner is not entitled to
habeas relief on the ground that counsel has claimed he was illprepared for trial.
Petitioner’s Claim Counsel Was Ineffective For
Failing to Interview or Call Certain Individuals as
Petitioner claims that trial counsel was ineffective for failing to
interview or call a number of individuals.
Petitioner claims these
individuals would have supported his self-defense claim; his peaceful
character; and other facts related to his defense.
Individuals Supporting Petitioner’s Self-Defense Claim
Petitioner claims that counsel was ineffective because he failed to
interview or call to testify five individuals whose testimony would have
allegedly supported his self-defense claim: the victim’s then-four yearold son, Austin Matti; the victim’s wife and Petitioner’s sister, Manal
Petros; Petitioner’s other sister, Hana Battris; Petitioner’s cousin,
Shaban Kejbou; and Petitioner’s employee, James Curry.
Petitioner previously raised this claim on appeal with respect to
these individuals, except Mr. Curry. The Michigan Court of Appeals
dismissed the claim, stating Petitioner had not submitted any
documentation at the evidentiary hearing – and also did not call these
individuals to testify at that hearing – to prove that these individuals
would have testified in support of his defense. People v. Zora, 2011 WL
2623384, at *6. Thus, counsel was not ineffective because Petitioner
had not demonstrated he was denied a “substantial defense” as nothing
showed the testimony may have altered the outcome of the trial. Id.
The record shows the state court reasonably found counsel was
not ineffective. First, nothing in the police interview of Austin Matti
indicates he saw his father threaten or attack Petitioner with a knife.
(See Dkt. 1-12.) Thus, Austin’s understanding of the events was only
that a fight occurred and then his father was shot.
Petitioner’s failure to call Austin at the post-trial evidentiary hearing
and to submit any additional documentation indicating he would have
testified to facts supporting Petitioner, the state court reasonably found
that counsel was not ineffective for failing to call Austin as a witness.
See Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005) (“[Petitioner]
has not introduced affidavits or any other evidence establishing what
[potential witnesses] would have said. . . .
In the absence of any
evidence showing that they would have offered specific favorable
testimony, [Petitioner] cannot show prejudice from counsel’s strategy
recommendation not to introduce this evidence.”).
Second, Petitioner’s sister, Manal Petros, has repeatedly attested
to the fact that she was in the garage at the time of the confrontation
between Petitioner and her husband. (Dkt. 1-5.) Thus, any testimony
she could have provided “would not help exonerate [Petitioner].”
Pillette v. Berghuis, 408 F. App’x 873, 885–86 (6th Cir. 2010) (petitioner
argued individual should have been called as a witness to support selfdefense claim in assault with intent to murder case). Consequently, the
decision not to call her as a witness is not obviously unreasonable trial
strategy, and it was reasonable for the state court to reject Petitioner’s
McMeans v. Brigano, 228 F.3d 674, 682 (6th Cir. 2000)
(“Strategic choices by counsel, while not necessarily those a federal
judge in hindsight might make, do not rise to the level of a Sixth
Third, Petitioner claims that trial counsel was ineffective for
failing to call his other sister, Hana Battris, to testify that the victim
attacked her with a knife fourteen years earlier. At trial, counsel filed a
motion to admit Ms. Battris’ testimony, but the trial court denied the
motion, in part because there was no indication that Petitioner was
aware of this specific instance of violence. (Tr. of Arg., 8–13 (Sept. 15,
2009); Tr. of Arg., 4–6 (Sept. 17, 2009)).
Under Michigan law, a
defendant must know a decedent’s reputation for violence if he or she is
going to use it to show he or she acted in self-defense. See People v.
Harris, 458 Mich. 310, 316 (1998). Because the evidence Ms. Battris
may have presented would have been inadmissible, the state court
reasonably found counsel was not ineffective for failing to call her as a
Next, Petitioner argues counsel was ineffective for failing to call
Petitioner’s cousin, Shaban Kejbou, to testify both about the victim’s
alleged “temper and aggressive attitude” and about an instance in
which the victim allegedly stabbed a man with a knife. Petitioner has
not provided any evidence suggesting he was aware of the stabbing
incident to which Mr. Kejbou allegedly would have testified. Thus, the
incident would very likely have been inadmissible under Michigan law.
Moreover, Petitioner has not demonstrated that because of Mr. Kejbou’s
testimony about the victim’s reputation, there is a reasonable
probability the outcome of his trial would be different. Accordingly, the
Michigan Court of Appeals reasonably found counsel was not ineffective
for failing to call Mr. Kejbou.
Finally, Petitioner argues that counsel should have called James
Curry, Petitioner’s employee, to testify that the victim intimidated
customers at his store with knives and made statements about his skills
with a knife and how he could kill someone with a knife. This claim
was not presented to the state courts and is thus unexhausted.
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
The Court may
nevertheless deny relief with respect to the unexhausted claim if it can
determine it lacks merit. 28 U.S.C. § 2254(b)(2). Here, as with the
exhausted claims, Petitioner has not provided information to show he
was aware of the incidents about which Mr. Curry may have testified.
Because this evidence would have been inadmissible under Michigan
law, counsel was not ineffective for failing to call Mr. Curry at trial.
Further, there was significant evidence presented at trial to
negate Petitioner’s self-defense claim and counsel called three witnesses
– Petitioner and two of his brothers – to present the self-defense claim.
Under Michigan law, for a defendant’s acts to be considered lawful selfdefense, the evidence must show:
(1) the defendant honestly and
reasonably believed that he or she was in danger; (2) the danger feared
was death or serious bodily harm or imminent forcible sexual
penetration; (3) the action taken appeared at the time to be
immediately necessary; and (4) the defendant was not the initial
aggressor. See Blanton v. Elo, 186 F.3d 712, 713 n.1 (6th Cir. 1999)
(citing People v. Heflin, 434 Mich. 482 (1990)); Johnigan v. Elo, 207 F.
Supp. 2d 599, 608–09 (E.D. Mich. 2002) (citing People v. Barker, 437
Mich. 161, 165 (1991); People v. Kemp, 202 Mich. App. 318, 322 (1993);
People v. Deason, 148 Mich. App. 27, 31 (1985)). And a defendant is not
entitled to use more force than necessary to defend himself. Johnigan,
207 F. Supp. 2d at 609 (citing Kemp, 202 Mich. App. at 322). Thus, “a
killing or use of potentially lethal force will be condoned only when the
killing or use of potentially lethal force was the only escape from death
[or] serious bodily harm.” Id. (internal citation omitted).
At trial, Petitioner and his brothers, Maher Zora and Hamid Zora,
testified as to the events supporting Petitioner’s self-defense claim.
They testified that they went to the victim’s house because Petitioner
believed the victim had stolen $250,000 from him.
And when they
arrived, the victim became angry and asked Petitioner where his gun
was. Further, all three testified that the victim went into the kitchen
and came out with a two-headed knife or barbecue fork in his left hand
and a knife in his other hand, and charged at Petitioner while
screaming an Iraqi or Arabic war cry. Finally, Petitioner and his two
brothers testified that Petitioner shot the victim in self-defense.
Despite this testimony, there was substantial evidence introduced
to show Petitioner did not act in self-defense.
Rather, the evidence
showed Petitioner was angry at the victim for allegedly stealing
$250,000, and went to confront the victim with a weapon and his two
brothers. Significantly, Dr. Daniel Spitz, the Macomb County Medical
Examiner, testified that the victim was shot five times, including three
times in the back. The victim was not standing when he was shot in the
back, according to Dr. Spitz. And there were no injuries suggesting a
struggle or evidence of close-range firing. (Tr. of Arg., 12–19, 52–53
(Sept. 18, 2009)). And there was no other evidence of a struggle with
the victim; no blood was recovered from the knife or fork, and both
utensils were found some distance from the victim’s body. The fact that
the victim was shot multiple times in the back, particularly when the
victim was on the ground, undercuts Petitioner’s self-defense claim.
See, e.g., Cain v. Redman, 947 F.2d 817, 822 (6th Cir. 1991).
Based on this evidence, a reasonable jury could find Petitioner
intended to kill or harm the victim and did not act in self-defense, and
that because Petitioner used excessive force.
Further, the trial and
appeals courts were justified in determining that Petitioner was not
entitled to claim self-defense under Michigan law. Cf. Sutton v. Bell,
645 F.3d 752, 758 (6th Cir. 2011) (state court reasonably determined
that petitioner was not prejudiced at capital murder trial by counsel’s
failure to object to prosecutor’s improper comment because petitioner’s
self-defense theory failed as a matter of law).
It is unlikely that
counsel’s “acts and omissions would have caused one to lose confidence
in the jury’s verdict.” Lewis v. Curtis, 37 F. App’x 154, 159 (6th Cir.
2002). Thus, the state court reasonably found trial counsel was not
ineffective for failing to interview or call these individuals to support
Petitioner’s self-defense claim. Accordingly, Petitioner is not entitled to
habeas relief on this claim.
Individuals Supporting Petitioner’s Peaceful Character
Petitioner also argues that trial counsel was ineffective for failing
to call Mr. Kejbou and Petitioner’s friend, Rafid Jajawie, to testify to
Petitioner’s character for peacefulness.
Petitioner’s claim was last
addressed by the trial court on his motion for post-conviction relief.
(Dkt. 1-42.) The trial court noted first that Petitioner did not offer any
affidavits from them or ask them to testify at the Ginther hearing, and
then held that counsel was not ineffective because Frank Polasky,
Petitioner’s friend, was called to testify and defense counsel “rebutted
the People’s witnesses who testified that the victim had a character for
peacefulness.” (Id. at 4–5.)
With his habeas petition, Petitioner has submitted affidavits from
Mr. Kejbou and Mr. Jajawie. However, they do not undermine the state
First, Mr. Kejbou’s affidavit does not mention
Petitioner’s peacefulness (Dkt. 1-24) and Mr. Jajawie’s affidavit
includes only one sentence as to Petitioner’s nature.
Generally, “courts should decline second-guessing an attorney’s trial
strategy,” including whether to call a witness.” Samatar v. Clarridge,
225 F. App’x 366, 371 (6th Cir. 2007). In this case, the affidavits do not
adequately demonstrate that these men would have testified favorably
regarding Petitioner’s character, and given that trial counsel called a
witness to testify as to Petitioner’s character and cross-examined the
prosecution’s witnesses regarding the victim’s character, Petitioner has
not demonstrated that the state court unreasonably rejected his Sixth
Amendment claim. See Carson v. United States, 3 F. App’x 321, 324
(6th Cir. 2001) (affidavits insufficient to show deficient performance
where petitioner alleged ineffective assistance of counsel for failure to
call witnesses). Accordingly, Petitioner is not entitled to relief on this
Individuals Supporting Petitioner’s Factual Account of the
Date of the Shooting
Petitioner argues that counsel should have called a number of
witnesses to testify about three specific facts: (1) the victim stole money
from Petitioner; (2) the victim and Petitioner had arranged to go to the
church on the day of the shooting to meet with a priest concerning the
alleged theft of Petitioner’s money; and (3) Petitioner intended to go to
Detroit on January 23, 2009 to meet with the Liquor Control
Commission at his brother Hamid’s store and therefore was not in the
city solely to confront the victim.
The Michigan Court of Appeals held that these facts were
presented at trial through the testimony of Petitioner and his two
brothers, and any testimony from the additional witnesses would have
been cumulative. Thus, “there [was] no reasonable probability that the
outcome would have been different” with more testimony, and counsel
was not ineffective. People v. Zora, 2011 WL 2623384, at *7.
As set forth above, whether to call a witness is trial strategy, and
absent a showing of prejudice, a court should not second-guess the
strategy. Here, even if these witnesses appeared at trial, a substantial
amount of evidence related to the events and crime scene negated
Petitioner’s self-defense claim. United States v. Foreman, 323 F.3d 498,
504–05 (6th Cir. 2003) (dismissing ineffective assistance of counsel
claim for failure to present additional witnesses where defendant
testified as to facts that other witnesses would address and substantial
evidence of guilt was admitted). Thus, Petitioner was not prejudiced by
the absence of these witnesses, and the state court’s determination that
counsel was not ineffective was reasonable. Accordingly, Petitioner is
not entitled to habeas relief on this ground.
Petitioner’s Claim That Counsel Was Ineffective For
Failing to Call A Self-Defense Expert
Petitioner also argues that trial counsel was ineffective for failing
to call a self-defense expert to testify about the “21 foot rule,” which was
allegedly taught to defendant during firearms training and instructs a
person to shoot an attacker approaching an individual with a knife or
other edged weapon if he or she is within twenty-one feet.
The Michigan Court of Appeals dismissed this claim, finding that
Petitioner had “failed to make the necessary showing” that the proposed
testimony would have assisted the trier of fact.” People v. Zora, 2011
WL 2623384, at *6.
Rather, Petitioner’s self-defense claim was
understandable to the jury without the assistance of an expert, and the
testimony would not have been relevant to his self-defense claim. Id.
As aptly stated by the Michigan Court of Appeals, Petitioner has
failed to show that an expert was necessary or that the testimony would
have been relevant.
And given the significant evidence presented
suggesting Petitioner’s guilt, it was reasonable for the state court to
conclude Petitioner was not prejudiced and counsel was not ineffective.
See Reynolds v. Bagley, 498 F.3d 549, 557–58 (6th Cir. 2007) (finding as
reasonable a state court determination that counsel was not ineffective
for failing to call an expert because petitioner suffered no prejudice).
Accordingly, Petitioner is not entitled to habeas relief on this ground.
Petitioner’s Claim That Counsel Was Ineffective For
Agreeing to Evidentiary Stipulation
Finally, Petitioner argues that counsel was ineffective for
stipulating that no fingerprints, DNA, or blood was found on the knife
and fork that were recovered at the crime scene. Counsel was allegedly
ineffective because a latent print was discovered on the fork and no
testing for DNA or blood was conducted on either instrument.
Petitioner also contends that trial counsel was ineffective for failing to
present evidence of the latent print because this would have established
that the victim had touched the fork and used it to attack him.
In rejecting this claim, the Michigan Court of Appeals noted the
stipulation was accurate that the print found on the fork had “no latent
prints of comparison value.” People v. Zora, 2011 WL 2623384, at *2, 5.
And, although the instruments were not tested for blood and DNA,
there was no visible evidence of either substance on them. Id. at *5.
Because this same evidence would have been introduced by the
prosecution through a lengthier – and perhaps more damaging –
process without the stipulation at trial, Petitioner has not demonstrated
he was prejudiced by counsel’s decision to agree to the stipulation.
Burke v. United States, 261 F. Supp. 2d 854, 862 (E.D. Mich. 2003).
Thus, the state court’s determination that counsel was not ineffective is
With respect to Petitioner’s argument that trial counsel was
ineffective for failing to introduce evidence of the latent print, as set
forth above, there were no prints obtained from either instruments that
could be compared to other individuals’ prints.
Further, given the
substantial amount of evidence admitted that inculpated Petitioner, the
latent print would have been immaterial to his conviction. Thus, he
cannot demonstrate the outcome of the trial likely would have been
different if the latent print were admitted. Accordingly, Petitioner is
not entitled to relief on this or his other ineffective assistance of counsel
Petitioner claims he was denied a fair trial because of
First, the prosecutor allegedly knew
Petitioner acted in self-defense, but presented false evidence by asking
trial counsel to stipulate that no fingerprints, DNA, or blood evidence
was recovered from the knife or barbecue fork.
And the prosecutor
compounded this error by repeating this claim in his closing argument.
Second, the prosecutor allegedly told Petitioner’s sister not to appear at
trial because the prosecutor knew her testimony would exonerate
Petitioner. Third, Petitioner claims the prosecutor misrepresented the
evidence when he argued that Petitioner staged the crime scene,
including by wiping clean the victim’s weapons, so it looked as though
he had been attacked.
Fourth, the prosecutor falsely argued that
Petitioner flipped the victim onto his stomach and then shot him in the
back. Fifth, the prosecutor allegedly committed misconduct by arguing
there was no evidence corroborating Petitioner’s need to be in Detroit on
the day of the shooting. Finally, the prosecutor allegedly submitted a
false affidavit to the trial court regarding what was argued during
opening and closing statements.
“Claims of prosecutorial misconduct are reviewed deferentially on
habeas review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)
(citing Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)).
prosecutor’s improper conduct will be held to violate a criminal
defendant’s constitutional rights only if they “‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’”
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)); Parker v. Matthews,
___U.S.___, 132 S. Ct. 2148, 2153 (2012) (confirming that Donnelly and
Darden are the proper standard).
The Michigan Court of Appeals rejected each of these claims on
their merits in a clear, reasoned opinion, which the Court will recite
Defendant first argues that he is entitled to a new trial
because the prosecutor knowingly presented “false and
nonexistent” evidence through an erroneous stipulation that
no fingerprints, DNA, or blood was found on a knife and fork
that were recovered at the scene. Defendant contends that,
although trial counsel agreed to the stipulation, it was false
because a latent print was discovered on the fork, and no
testing for DNA or blood was actually performed on either
This Court reviews a trial court’s decision on a motion for a
new trial for an abuse of discretion. People v. Cress, 468
Mich. 678, 691; 664 NW2d 174 (2003). A trial court abuses
its discretion when its decision falls outside the range of
reasonable and principled outcomes. People v. Yost, 278
Mich.App 341, 379; 749 NW2d 753 (2008). Further, “in order
for prosecutorial misconduct to constitute constitutional
error, the misconduct must have so infected the trial with
unfairness as to make the conviction a deprivation of liberty
without due process of law.” People v. Blackmon, 280
Mich.App 253, 269; 761 NW2d 172 (2008).
A prosecutor’s knowing use of false evidence violates a
defendant’s right to due process. Napue v. Illinois, 360 U.S.
264, 269; 79 S Ct 1173; 3 L.Ed.2d 1217 (1959). To prevail
under Napue, a defendant must show that (1) the evidence
was actually false; (2) the prosecution knew that the
evidence was actually false; and (3) that the false testimony
was material. Id. at 271. “Material” means that there is a
reasonable likelihood that the false evidence could have
affected the verdict. See People v. Herndon, 246 Mich.App
371, 417–418; 633 NW2d 376 (2001).
As an initial matter, defendant’s reliance on a police report
statement by the victim’s four-year-old son and a letter
allegedly written by Manal Petros to support defendant’s
claim that the prosecutor knowingly presented false
evidence, is misplaced because neither the letter nor the
police report is part of the lower court record. It is
impermissible for a party to enlarge the record on appeal.
People v. Williams, 241 Mich.App 519, 524 n1; 616 NW2d
710 (2000); see also People v. Seals, 285 Mich.App 1, 20–21;
776 NW2d 314 (2009).
In any event, we agree with the trial court that defendant
has not shown that the stipulation was actually false. The
parties stipulated that no prints, DNA, or blood were found
on the victim's knife or fork. It is undisputed that no
fingerprints were found on the knife. With regard to the
fork, a latent “lift” was recovered from the stainless steel
portion of the fork near the tines. The forensic scientist and
fingerprint expert reported, and later testified at a Ginther
hearing, that the “latent lift” had “no latent prints of
comparison value.” She explained that a latent lift is not
synonymous with an identifiable fingerprint, so the
statement that there were no fingerprints is accurate.
Further, although there was no testing for blood or DNA on
either the knife or the fork, there also is no evidence that
either substance was on either instrument.
Furthermore, there is no reasonable likelihood that the
stipulation affected the jury’s verdict. The evidence shows
that a latent, unusable lift was discovered on the stainless
steel portion of the fork near the tines. The scenario
described by the defense witnesses did not present
circumstances where the victim’s fingerprint would have
been transferred to the tines of the fork. Rather, the defense
witnesses testified that the victim held the fork by the
handle in his palm, inside his closed fist. Defendant makes
much of the fact that there was a latent, unusable lift on the
fork, while ignoring other properly admitted evidence that
rebuts his self-defense claim. The evidence indicates that
defendant went to the victim’s house unannounced,
accompanied by his two brothers, because he believed that
the victim had stolen $250,000 from him. Defendant
instigated the confrontation at the victim’s home, and
brought a loaded weapon to the home. According to the
defense witnesses, defendant was angry about the victim's
theft, and the victim refused to go to the church to swear on
a Bible that he had not taken the money. Defendant
admitted shooting his gun toward the victim repeatedly. The
autopsy revealed that the victim was shot five times, none at
close range. Three shots were to the back, and two of the
three gunshot wounds to the back occurred while the victim
was down or close to the floor. There was no evidence of a
struggle. Given the substantial evidence against defendant,
to the extent the stipulation could be considered false, it was
In a related claim, defendant also argues that the prosecutor
impermissibly used the false stipulation during opening
statement and closing argument. In opening statement,
when listing certain “undisputed facts,” the prosecutor
stated that the fork and knife has “no evidentiary value,”
and “no fingerprints, no DNA, no blood as to anyone
involved, possibly involved in this incident.”
“The purpose of an opening statement is to tell the jury what
the advocate proposes to show.” People v. Moss, 70 Mich.App
18, 32; 245 NW2d 389 (1976). Viewed in context, the
prosecutor's reference during opening statement was
designed to show that he intended to prove during trial that
there was no evidence on the fork and knife, and that
defendant’s self-defense claim was not credible. The
statement was based on the stipulation, which was accurate;
therefore, the prosecutor did not engage in misconduct by
referring to it during opening statement and closing
argument. In closing argument, the prosecutor was free to
argue the evidence and all reasonable inferences arising
from it as they related to his theory of the case. See People v.
Bahoda, 448 Mich. 261, 282; 531 NW2d 659 (1995).
With regard to closing argument, defendant argues that the
prosecutor impermissibly used the stipulation to falsely
assert that the defense witnesses wiped the fork clean and
staged the scene. We agree that the prosecutor’s remark that
the fork was clean was inaccurate because a latent lift was
present. But the defendant bears the burden of showing
actual prejudice, People v. Pipes, 475 Mich. 267, 274; 715
NW2d 290 (2006), and reversal is only warranted if the error
affected the outcome of the proceedings. See Blackmon, 280
Mich.App at 269.
Viewed in context, the prosecutor’s remark did not cause
defendant’s conviction. The remark was focused on
establishing the lack of evidence to support defendant’s selfdefense claim. While there was no evidence that the fork and
knife had been wiped clean, it is true that the victim’s prints
were not on either instrument, and neither the fork nor the
knife were found in close proximity to the victim's body. In
addition, as previously indicated, there was evidence that
defendant was angry because he believed that the victim had
stolen a large amount of money from him, that he arrived at
the victim’s house unannounced and accompanied by his two
brothers, that he was armed with a weapon, and that he shot
the victim multiple times, including three times in the back.
Moreover, the trial court instructed the jury that the
lawyers’ statements and arguments are not evidence, and
that the jury was to decide the case based only on the
properly admitted evidence. These instructions were
sufficient to dispel any possible prejudice. People v. Long,
246 Mich.App 582, 588; 633 NW2d 843 (2001). “It is well
established that jurors are presumed to follow their
instructions.” People v. Graves, 458 Mich. 476, 486; 581
NW2d 229 (1998).
For these reasons, the trial court’s decision to deny
defendant’s motion for a new trial based on the prosecutor’s
conduct, after first evaluating the accuracy of the stipulation
and the prosecutor’s comments, was a principled decision
and, therefore, not an abuse of discretion.
People v. Zora, 2011 WL 2623384, at *1–4.
In renewing his arguments in this petition, Petitioner raises no
new arguments, but disagrees with the state court’s findings. “[T]he
Supreme Court has clearly indicated that the state courts have
substantial breathing room when considering prosecutorial misconduct
claims because constitutional line drawing in prosecutorial misconduct
cases is necessarily imprecise.” Slagle v. Bagley, 457 F.3d 501, 516 (6th
Cir. 2006) (internal quotation marks and alterations omitted). Because
“the Darden standard is a very general one,” courts have “more leeway .
. . in reaching outcomes in case-by-case determinations.” Parker, 132 S.
Ct. at 2155 (internal quotation marks omitted).
Petitioner has not shown that anything in the record refutes the
state court’s description of what occurred at trial. And even considering
the interview of Austin Matti and the letter from Manal Petros, he has
failed to show the state court determination rejecting his prosecutorial
misconduct claims was contrary to, or an unreasonable application of,
clearly established law.
First, as set forth above, Austin Matti’s
interview indicates that he did not witness the confrontation between
Petitioner and the victim and therefore could not support Petitioner’s
claim of self-defense. Second, Ms. Petros’ letter, sent to the trial judge
several months after Petitioner’s trial does not state whether it was the
prosecutor who advised her not to attend the trial.
(See Dkt. 1-5.)
Indeed, Petitioner’s claim that the prosecutor told her to stay away is
inconsistent with Ms. Petros’ admission that the prosecutor subpoenaed
her for trial.
And, as set forth above, she did not witness the
confrontation between her husband and Petitioner, and therefore could
not support Petitioner’s claim of self-defense.
Thus, Petitioner has
failed to demonstrate he was prejudiced by the prosecutor’s conduct and
that the state court determination was unreasonable.
Finally, even if the prosecutor submitted a misleading or
incomplete affidavit to oppose Petitioner’s state post-conviction relief
motion, Petitioner has not demonstrated he was harmed by the
And, as set forth above, the state courts reviewed the
transcripts of what was argued during opening and closing statements
and found any misconduct not to have prejudiced Petitioner.
Accordingly, Petitioner is not entitled to habeas relief on his
claims of prosecutorial misconduct.
Petitioner claims the prosecutor failed to disclose the forensic
report with information about the latent print found on the barbecue
fork, and this led defense counsel to erroneously agree to the
stipulation. He also claims that the prosecutor wrongfully delayed the
DNA testing of the victim’s clothing and then withheld the result until
after the trial. Finally, Petitioner alleges the prosecutor “concealed” the
interview of Austin Matti and Petitioner’s phone records that
supposedly corroborated that he was in Detroit for meetings on the day
the victim was killed there. (Dkt. 1-1 at 42.)
The Michigan Court of Appeals rejected the first of these claims on
There is no indication that the prosecutor suppressed the
forensic report. During post-trial proceedings, the prosecutor
averred that the report would have been provided to the
defense thorough discovery. Defense counsel acknowledged
that it was possible that the forensic report was misplaced
among the more than 200 pages of discovery provided to the
defense. He also acknowledged that he knew from a police
report that a latent print was found on the fork, and that the
knife and fork were being tested. Thus, the defense was
aware of the latent lift and the testing, and defendant could
have followed through to obtain the report with reasonable
diligence had he planned to review it. Indeed, trial counsel
admitted that he did not consider the forensic report
relevant to defendant's case. Moreover, given the substance
of the forensic report and the overwhelming evidence against
defendant, the absence of the forensic report was not the
difference between conviction and acquittal.
People v. Zora, 2011 WL 2623384, at *3.
A habeas petitioner bears the burden of showing the prosecution
withheld exculpatory evidence. See Bell v. Howes, 703 F.3d 848, 853
(6th Cir. 2012). Here, Petitioner has made only conclusory statements
that the prosecutor concealed the forensic report.
In fact, defense
counsel admitted he may have received it but misplaced it.
Petitioner has not demonstrated that the prosecutor concealed the
report, and therefore failed to show that the state court determination
rejecting his claim was contrary to, or an unreasonable application of,
clearly established law.
Similarly, Petitioner has not provided any evidence to show the
prosecutor withheld or delayed the DNA testing of the victim’s clothes,
the police report and interview of Austin Matti, or his cell phone
Even if the prosecutor did withhold these documents,
Petitioner has not demonstrated that the evidence provided would be
exculpatory or material to his guilt. Brady v. Maryland, 373 U.S. 83, 87
(1963) (defendant must show that the state withheld exculpatory
evidence and that the evidence was material either to guilt or to
punishment irrespective of good faith or bad faith of the prosecution).
Evidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding
would have been different. A “reasonable probability is a probability
sufficient to undermine confidence in the outcome.” United States v.
Bagley, 473 U.S. 667, 683 (1985).
The “cumulative effect of the [allegedly undisclosed] evidence” was
not material to Petitioner’s conviction. See Kyles v. Whitley, 514 U.S.
419, 440 (1995) (cumulative effect of evidence is the “touchstone” of
assessing materiality of Brady violations).
First, if the DNA report
says, as Petitioner contends, there was blood on the clothing, it
undermines his own testimony that the victim never stabbed or injured
anyone. Thus, the report would not necessarily exculpate him, and if
introduced at trial, it may have only damaged his credibility and his
self-defense theory. Second, as set forth above, Austin Matti’s interview
would not exonerate Petitioner. Finally, the cell phone records may
establish that Petitioner had a reason to be in Detroit, but they do not
directly address the confrontation between Petitioner and the victim.
Thus, these three pieces of information, when viewed together, show
there is not a reasonable probability they would undermine confidence
in the guilty verdict – or even support Petitioner’s self-defense claim –
especially given the substantial amount of evidence admitted that
suggested Petitioner’s guilt.
Accordingly, Petitioner is not entitled to habeas relief on his
Brady violation claims.
Petitioner claims that the jurors were biased against him because
he was Chaldean. Petitioner raised similar jury bias claims on direct
appeal, but did not present this specific claim to the state courts.
However, because the Court can determine the claim lacks merit, the
Court will address the claim and deny relief.
To support his claim, Petitioner has presented the affidavit of
Dale Barr, dated March 27, 2013. (Dkt. 1-16.) Mr. Barr served as an
alternate juror during Petitioner’s trial.
He claims that during the
trial, a seated juror commented, “[T]hose people can’t control
themselves even when they are in the courthouse.” (Id. at 2.) The
comment was allegedly made after the jurors witnessed a fight at the
courthouse between “some individuals who resembled people of Middle
Eastern decent [sic].”
Mr. Barr further claims, “From my
experience with and among the jurors at Mr. Zora’s trial, the jurors as a
whole relied upon a discriminatory presumption against Mr. Zora that,
because Mr. Zora is Chaldean/Middle Eastern and because of the money
that Mr. Zora alleged was stolen from him, Mr. Zora must have made
that money illegally and, therefore, must be guilty.” (Id.)
Petitioner is not entitled to relief on this claim. “[T]he partiality
of a petit jury is evaluated in light of the persons who are ultimately
empaneled and sworn, and not by those who are excused from service.”
Dell v. Straub, 194 F. Supp. 2d 629, 655 (E.D. Mich. 2002).
juror who allegedly commented about “those people” was removed for
cause before the jury was empaneled and sworn. See People v. Zora,
2011 WL 2623384, at *7. Thus, this potential juror’s comments cannot
be used to evaluate any bias of the jury that deliberated and convicted
Petitioner. Dell, 194 F. Supp. 2d at 655.
Petitioner’s remaining bias claim regarding the “jury as a whole”
is unsupported. First, “[b]ias in this context is ‘actual bias,’ or bias in
fact,” and a “petitioner must show that the jurors were actually biased
against him.” Holder v. Palmer, 586 F.3d 328, 339 (6th Cir. 2009). Mr.
Barr’s affidavit provides no more than a conclusory statement about his
belief that the jury was biased against Petitioner, and Petitioner has
provided no additional information to support his claim. Second, Mr.
Barr was an alternate juror and did not participate in deliberations,
and his affidavit is therefore insufficient to establish the jury was
biased against Petitioner. See Mason v. Mitchell, 320 F.3d 604, 637 (6th
Cir. 2003). In sum, the record does not show Petitioner was denied a
fair trial, see id., and Petitioner is not entitled to relief on his jury bias
Petitioner contends he is entitled to habeas relief because of
cumulative error. The Sixth Circuit has held, however, that “not even
constitutional errors that would not individually support habeas relief
can be cumulated to support habeas relief.” Moore v. Parker, 425 F.3d
250, 256 (6th Cir. 2005). Even if the Court did consider the alleged
errors cumulatively, Petitioner’s claim would fail because of the
substantial amount of evidence of his guilt admitted at trial.
Accordingly, Petitioner is not entitled to habeas relief on the grounds of
cumulative error. Id.
Petitioner’s Motion for an Evidentiary Hearing
Petitioner has filed a motion for an evidentiary hearing.
deciding whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable an applicant to prove the
petition’s factual allegations, which, if true, would entitle the applicant
to federal habeas relief.” Schriro, 550 U.S. at 474. But “a petition may
be summarily dismissed if the record clearly indicates that the
petitioner’s claims are either barred from review or without merit.”
Stanford v. Parker, 266 F.3d 442, 459–60 (6th Cir. 2001) (citing Wilson
v. Kemna, 12 F.3d 145, 146 (8th Cir. 1994)).
As set forth above, Petitioner’s claims lack merit, and he is
therefore not entitled to an evidentiary hearing. Petitioner’s motion for
an evidentiary hearing is denied.
The Court will deny the petition for writ of habeas corpus on its
merits. And the Court “must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” Rules Governing
§ 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254; see also Strayhorn v.
Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
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).
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
Accordingly, the petition for a writ of habeas corpus is DENIED
WITH PREJUDICE. (Dkt. 1.) The motion for an evidentiary hearing
(Dkt. 9) is DENIED. A certificate of appealability is DENIED.
IT IS SO ORDERED.
Dated: January 10, 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 January 10, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
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