Howard v. Mackie

Filing 7

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus; and Declining to Issue a Certificate of Appealability or Leave to Appeal in forma pauperis, Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEONTE HOWARD,
Petitioner,
v.

Case No. 5:16-CV-13131
HONORABLE JOHN CORBETT O’MEARA
UNITED STATES DISTRICT JUDGE

THOMAS MACKIE,
Respondent,
_________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
OR LEAVE TO APPEAL IN FORMA PAUPERIS
Deonte Howard, (“Petitioner”), confined at the Oaks Correctional Facility in
Manistee, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, in which he challenges his conviction for first-degree premeditated
murder, M.C.L.A. 750.316; assault with intent to do great bodily harm less than murder,
M.C.L.A. 750.84; and felony-firearm, M.C.L.A. 750.227b. For the reasons stated below,
the petition for writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted in the Wayne County Circuit Court.1 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). See Wagner v.
1

Petitioner was convicted by a jury at a first trial of the assault and felony-firearm charges but the jury
could not reach a verdict on the first-degree murder charge and a mistrial was declared on that count. Petitioner was
convicted of first-degree murder by a jury following a retrial.

1

Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant was charged with first degree premeditated murder, assault with
intent to murder and felony firearm in connection with the shooting death of
19–year–old Tyrone Simpson on April 10, 2010. The shooting occurred in
front of a combination convenience store/barbecue restaurant on the 1600
block of Tireman Street in the city of Detroit shortly after 4:00 p.m. An
argument broke out between defendant, who was 16 years old at the time, and
Simpson when Simpson accused defendant of taking his Cartier sunglasses.
Defendant denied taking them and a verbal argument ensued. Simpson then
punched defendant in the face several times, at which point defendant drew a
weapon and fired at Simpson, injuring him and one of Simpson’s friends,
Aundrey Allen. Simpson attempted to run away from defendant, but defendant
chased Simpson around a vehicle, shooting at and striking him with several
shots until Simpson collapsed in the street. An SUV driven by an unidentified
friend of defendant’s then pulled up and defendant jumped into the back seat.
The vehicle started to leave, and then abruptly slammed on its breaks.
Defendant got back out of the vehicle and shot Simpson in the head.
Defendant then got back into the vehicle and it sped away. Simpson was dead
when police arrived on the scene a short time later. The medical examiner
noted that Simpson had a total of nine gunshot wounds, including one to his
head.
People v. Howard, No. 311169, 2014 WL 5305997, at *1 (Mich. Ct. App. Oct. 16,
2014).
Petitioner’s conviction was affirmed on appeal, although the case was remanded for
re-sentencing. Id., lv. den. 498 Mich. 852 (2015). 2
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Howard’s conviction for first-degree murder must be vacated where the
prosecution failed to present legally sufficient evidence that he is who
committed the offense and no evidence that he acted with premeditation and
2

Petitioner is in the process of resentencing at the trial court due to the United States Supreme Court
decision in Miller v. Alabama, 132 U.S. 2455, 2475 (2012), which prohibits mandatory nonparolable life sentences
for a defendant who committed his or her offense when he or she was a juvenile, as petitioner was. Petitioner does
not challenge his sentence or re-sentencing in this petition.

2

deliberation.
II. Howard was denied his state and federal right to effective assistance of
counsel where defense counsel failed to call a police officer as a defense
witness, failed to submit a critical stipulation at the first trial, and failed to
cross-examine the prosecutor’s key witness.
III. Howard is entitled to a new trial where he was denied his state and federal
due process rights where his conviction was obtained through use of false and
perjured testimony.
II. Standard of Review
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
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, 405-06
(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

3

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 410-11. “[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)).
Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to
show that the state court’s rejection of his claim “was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id. at 103. 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, 136 S. Ct. 1149,
1152 (2016).
III. Discussion
A. Claim # 1. The sufficiency of evidence claim.
Petitioner claims that there was insufficient evidence to convict him.
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
4

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). This
inquiry, however, does not require a court to “ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant
question is 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 the original).
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). “Because rational people
can sometimes disagree, the inevitable consequence of this settled law is that judges will
sometimes encounter convictions that they believe to be mistaken, but that they must
nonetheless uphold.” Id. Indeed, for a federal habeas court reviewing a state court
conviction, “the only question under Jackson is whether that finding was so
insupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson,
132 S. Ct. 2060, 2065 (2012).
Finally, on habeas review, a federal court does not reweigh the evidence or
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
5

weigh the probative value of the evidence and resolve any conflicts in testimony. Neal v.
Morris, 972 F. 2d 675, 679 (6th Cir. 1992). A habeas court therefore must defer to the
fact finder for its assessment of the credibility of witnesses. Matthews v. Abramajtys, 319
F. 3d 780, 788 (6th Cir. 2003).
Petitioner first claims that there was insufficient evidence to establish his identity
as the shooter. The Michigan Court of Appeals rejected petitioner’s claim:
In this case, defendant was identified by no less than four eyewitnesses to the
shooting. Frederick McFadden testified that he had an unobstructed view of
the scene from approximately 20 feet away, and saw defendant shoot Simpson
several times. His testimony was unequivocal that defendant was the only
person with a gun and that defendant shot Simpson several times, including
once in the head. As pointed out by defendant, McFadden testified at trial
that he picked out defendant and the driver of a car from a photo array, which
was different from his testimony in a prior trial that he picked out the shooter
and two drivers. McFadden also described the shooter to the police as 20 to
24 years of age and 5”11 to 6” tall when defendant was 16 at the time of the
shooting and is less than 5’6”. However, the credibility of identification
testimony is a question for the trier of fact.
Marcario Harris and Kimberly Thompson, who live across the street from the
store/restaurant where the shooting occurred, also identified defendant as the
shooter. Both testified that they had a clear view of the shooting through their
front living room window, which faced the store and they could clearly see
defendant in the broad daylight. Both testified that defendant was only person
they saw with a gun during the incident. Neither was asked to view a photo
array or participate in a live lineup, but identified defendant for the first time
at trial. Both Harris and Thompson described the shooter to the police
immediately after the event as around 5”9 or 5’10”, thin, and in his mid–20’s.
This description is not so far off as to be a misidentification and moreover, the
jury is responsible for both credibility and evidentiary weight determinations.
Aundrey Allen also identified defendant as the shooter. He had been standing
with Simpson while Simpson was arguing with defendant about his glasses
and when Simpson punched defendant in the face. Allen testified that he was
also standing behind and somewhat to the side of Simpson when defendant
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pulled a gun out of his pocket and started shooting at Simpson. Allen was
shot in the leg as he tried to run. Allen described the shooter to the police as
being around 5’7” or 5’8” and around 17 or 18 years old. Allen also told the
police that several people at the incident called the shooter “Tay,” which
others witnesses confirmed was defendant’s nickname. At the hospital after
his surgery, Allen did view a photo array and identify another person as the
shooter. Allen explained, however, that he was under the influence of
morphine at the time of that identification. Allen thereafter participated in a
live line up and identified defendant out of the lineup as the shooter.
The above was sufficient for a reasonable jury to find beyond a reasonable
doubt that defendant was identified as the shooter.
People v. Howard, 2014 WL 5305997, at * 2 (internal citations omitted).
Under Michigan law, “[T]he identity of a defendant as the perpetrator of the
crimes charged is an element of the offense and must be proved beyond a reasonable
doubt.” Byrd v. Tessmer, 82 F. App’x. 147, 150 (6th Cir. 2003)(citing People v. Turrell,
25 Mich.App. 646, 181 N.W.2d 655, 656 (1970)).
In the present case, four eyewitnesses, including the surviving shooting victim,
positively identified petitioner at trial as the shooter. The Court notes that “the testimony
of a single, uncorroborated prosecuting witness or other eyewitness is generally
sufficient to support a conviction.“ Brown v. Davis, 752 F. 2d 1142, 1144 (6th Cir.
1985)(internal citations omitted). Four eyewitnesses unequivocally identified petitioner
at trial as being the shooter based on their personal observations. This evidence was
sufficient to support petitioner’s convictions. See Thomas v. Perry, 553 F. App’x. 485,
487–88 (6th Cir. 2014).
A federal court reviewing a state court conviction on habeas review that is “faced

7

with a record of historical facts that supports conflicting inferences must presume—even
if it does not affirmatively appear in the record—that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that resolution.” Cavazos, 565
U.S. at 7 (quoting Jackson v. Virginia, 443 U.S. at 326). Although there may have been
conflicts between the witnesses concerning their descriptions of the shooter, this Court
must presume that the trier of fact resolved these conflicts in favor of the prosecution and
defer to that resolution.
Petitioner next claims that there was insufficient evidence of premeditation and
deliberation to support his first-degree murder conviction. Petitioner claims that the
evidence, at most, showed that he shot Mr. Simpson after the victim had punched him
and was thus acting under a thought process influenced by “hot blood” that would negate
the element of premeditation and deliberation.
The Michigan Court of Appeals rejected petitioner’s claim:
No one disputes that Simpson approached defendant accusing him of stealing
his glasses. It also appears that Simpson escalated the verbal altercation to a
physical level by punching the defendant and that defendant did not punch
him back. However, by all accounts, defendant was the only one with a
weapon and the only one who shot. Most important to our analysis, several
distinct rounds of shooting occurred. First, after Simpson punched defendant
several times in the face and was approaching to punch him again, defendant
shot at Simpson at least twice. Allen, who was standing next to Simpson at
the time the first shots were fired, testified that defendant initially shot at
Simpson twice.
The second round of shots came almost immediately thereafter. Allen
testified that after the first two initial shots, he ran toward the store. As he
ran, he heard three more shots. Bobby Bailey, another witness, also ran to the
store after the initial shots.
8

The next round of shots occurred when both Bailey and Allen were inside the
store. Bailey testified that he heard six or seven more shots while he was in
the store. Allen testified that, he too, heard additional shots while he was in
the store. Allen testified that he heard eight or nine shots right in a row, then
a several second pause occurred. Allen testified that he next heard Simpson
begging for his life and a final, single shot. According to Allen, he thereafter
heard the sound of a car being floored and taking off.
McFadden similarly testified to distinct rounds of shots. He testified the he
heard three initial shots, and then his attention was drawn to an elderly lady
getting out of her car in the street. McFadden had time to help the woman to
her home before he heard the next shot, which he testified he heard while at
the same time seeing Simpson stumble backward. McFadden testified that he
then heard several more shots and Simpson was lying in the street. According
to McFadden, the defendant fired two more shots at Simpson as he lay in the
street then got into an SUV. Defendant then got back out of the SUV, said
“This m—f—n—isn’t dead yet” and shot defendant several more times,
including once in the head. Defendant then got back in the SUV and left.
Witness Harris, testified that he saw defendant chasing Simpson around a
Suburban, shooting at him. After Simpson fell to the ground, defendant
walked toward him and shot at him several more times. Harris testified that
defendant shot at Simpson approximately 15 times. Witness Thompson
testified that defendant first shot at Simpson while both were in the street and
Simpson fell to the ground. Defendant then got into an SUV and started to
take off, then abruptly got back out of the vehicle when Simpson started to get
up. Thompson testified that defendant chased Simpson around shooting at
him. She heard Simpson begging for his life and saw defendant walk up to
Simpson, shoot him in the head, and then get back into the SUV and leave.
The prosecution presented sufficient evidence of premeditation and
deliberation to support defendant’s first degree premeditated murder
conviction. The first shots fired by defendant could qualify as being brought
about by “hot blood” without an opportunity to take a second thought.
Simpson had just punched defendant in the face several times and was
advancing toward him again. Allen testified that at that point, defendant
started reaching for his pocket “real crazy like.” Were those the only shots
fired, defendant’s argument that his actions were rash, impulsive or a
hot-blooded reaction to the circumstances would have some merit. However,
the testimony establishes that after the initial few shots, there was a minimum
of a several second pause as Allen and others fled the scene. The pause was
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long enough, if McFadden’s testimony is to be believed, for him to assist an
elderly lady from her car parked in the street up to her house and for him to
then return to the street and witness the next round of shots. Allen testified
that he could see Simpson’s hand go toward his stomach as though he had
been shot in that area. McFadden also testified that after one of the first
several shots, he saw Simpson stumble backward. By all witness accounts,
then, Simpson was still alive after the first shots were fired. Assuming
defendant did not possess the requisite intent (premeditation or deliberation)
to murder at the time the first shots were fired, he could have left at that point
and the incident perhaps would have been over.
However, after a pause, more shots were fired and, by all witness accounts,
Simpson was still alive. According to Harris and Thompson, it was at that
point that defendant got into an SUV and appeared to be about to leave the
scene, but when Simpson started to get up out of the street, the SUV slammed
on its brakes and defendant got back out. According to these witnesses,
defendant chased Simpson around a vehicle, firing more shots at him until he
fell back into the street, then walked up to him and fired a final shot into his
head. While McFadden made no mention of defendant chasing Simpson
around a vehicle as he fired shots at him, he did testify that defendant got into
an SUV, then got back out, said “This m—f—n—isn’t dead yet” and shot
defendant several more times, including once in the head. The medical
examiner testified that when the shot to his head was delivered, Simpson was
still alive.
A reasonable jury could find that between the apparently non-fatal first shots
and the final shot to Simpson’s head, there was sufficient time for defendant
to take a second look at the nature of his actions. Defendant may have had no
prior relationship with Simpson and may not have initially gone to the
store/restaurant for anything other than his stated purpose of finding his
phone. Nevertheless, the circumstances of the killing itself show that
defendant thought about taking Simpson’s life before the he took the acts
which actually caused the death and pondered the acts for some, albeit small,
amount of time. Defendant then got into an SUV and the vehicle started to
leave. But it then stopped as Simpson started to get up and defendant elected
to shoot Simpson several more times while at least one witness testified that
defendant made a statement concerning an intent to kill Simpson and while
other witnesses testified they heard Simpson pleading with defendant for his
life. Defendant then stood over Simpson while he lay in the street and shot
him in the head. The location of this final shot, the positions of the parties,
and the fact that defendant halted and got out of vehicle to deliver the final
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shots adequately suggest that although defendant had time to take a second
look and perhaps leave Simpson injured, defendant deliberately chose to
ensure that he killed Simpson. Thus, even if defendant did not form a
homicidal intent until he stopped the SUV and got back out to deliver the final
round of shots, the time span between that moment and the time the initial
shots were fired would be of a sufficient amount to allow defendant to take
a second look. There was thus sufficient evidence of premeditation and
deliberation to support defendant’s first degree murder conviction.
People v. Howard, No. 311169, 2014 WL 5305997, at * 3–5.
To constitute first-degree murder in Michigan, the state must establish that a
defendant’s intentional killing of another was deliberated and premeditated. See Scott v.
Elo, 302 F. 3d 598, 602 (6th Cir. 2002)(citing People v. Schollaert, 194 Mich. App. 158;
486 N.W.2d 312, 318 (1992)). The elements of premeditation and deliberation may be
inferred from the circumstances surrounding the killing. See Johnson v. Hofbauer, 159 F.
Supp. 2d 582, 596 (E.D. Mich. 2001)(citing People v. Anderson, 209 Mich. App. 527,
537; 531 N. W. 2d 780 (1995)). Premeditation may be established through evidence of
the following factors:
1. the prior relationship of the parties;
2. the defendant’s actions before the killing;
3. the circumstances of the killing itself;
4. the defendant’s conduct after the homicide.
Cyars v. Hofbauer, 383 F.3d 485, 491 (6th Cir. 2004); Anderson, 209 Mich. App.
at 527.
Although the minimum time required under Michigan law to premeditate “is

11

incapable of exact determination, the interval between initial thought and ultimate action
should be long enough to afford a reasonable man time to subject the nature of his
response to a ‘second look.’” See Williams v. Jones, 231 F. Supp. 2d 586, 594-95 (E.D.
Mich. 2002)(quoting People v. Vail, 393 Mich. 460, 469; 227 N.W. 2d 535 (1975)). “A
few seconds between the antagonistic action between the defendant and the victim and
the defendant’s decision to murder the victim may be sufficient to create a jury question
on the issue of premeditation.” Alder v. Burt, 240 F. Supp. 2d 651, 663 (E.D. Mich.
2003). “[A]n opportunity for a ‘second look’ may occur in a matter of seconds, minutes,
or hours, depending upon the totality of the circumstances surrounding the killing.”
Johnson, 159 F. Supp. 2d at 596 (quoting People v. Berthiaume, 59 Mich. App. 451, 456
(1975)). Premeditation and deliberation may be inferred from the type of weapon used
and the location of the wounds inflicted. See People v. Berry, 198 Mich. App. 123, 128;
497 N. W. 2d 202 (1993). Use of a lethal weapon will support an inference of an intent
to kill. Johnson, 159 F. Supp. 2d at 596 (citing People v. Turner, 62 Mich. App. 467,
470; 233 N.W. 2d 617 (1975)). Finally, premeditation and intent to kill may be inferred
from circumstantial evidence. See DeLisle v. Rivers, 161 F. 3d 370, 389 (6th Cir. 1998).
In the present case, there was sufficient evidence for a rational trier of fact to
conclude that petitioner acted with premeditation and deliberation when he shot the
victim. The evidence established that petitioner had been engaged in an argument with
Mr. Simpson prior to the shooting. Evidence that petitioner had a prior dispute with the
victim supports a reasonable inference that the subsequent shooting was premeditated.
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Scott, 302 F. 3d at 603. Testimony that petitioner fired multiple gunshots would also be
sufficient to establish premeditation and deliberation. See Thomas v. McKee, 571 F.
App’x. 403, 407 (6th Cir. 2014). The testimony further established that petitioner did
not fire all these shots at once, but paused between firing more shots on two separate
occasions. This evidence further supports an inference of premeditation and
deliberation. See McCullough v. Stegall, 17 F. App’x. 292, 296 (6th Cir. 2001).
Petitioner also shot the victim in the head. Under Michigan law, premeditation may also
be logically inferred from wounds inflicted on vital parts of the victim’s body. See
Lundberg v. Buchkoe, 338 F. 2d 62, 69 (6th Cir. 1964). Petitioner ignored the victim’s
pleas not to shoot him while he was on the ground, further evidence of premeditation and
deliberation. See Thomas v. McKee, 571 F. App’x. at 407. The fact that petitioner fled
the scene afterwards also supports a finding of premeditation. See e.g. Marsack v.
Howes, 300 F. Supp. 2d 483, 492 (E.D. Mich. 2004).
A federal court’s review on habeas is very deferential to the state courts regarding
sufficiency of evidence claims and this Court cannot say that the insufficiency of
evidence claim resulted in a decision that was contrary to, or involved an unreasonable
application of Jackson. Durr v. Mitchell, 487 F. 3d 423, 448 (6th Cir. 2007). “While
there may have been other possible conclusions that the jury could have drawn from the
evidence, a determination of premeditation ‘beyond a reasonable doubt’ does not require
a jury to find that the evidence eliminates every other reasonable theory except that
presented by the prosecution.” Titus v. Jackson, 452 F. App’x. 647, 650 (6th Cir. 2011).
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Petitioner is not entitled to relief on his first claim.
B. Claim # 2. The ineffective assistance of counsel claim.
Petitioner alleges that he was denied the effective assistance of counsel.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two prong test. First, the defendant
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
defendant must overcome a strong presumption that counsel’s behavior lies within the
wide range of reasonable professional assistance. Id. Second, the defendant must show
that such performance prejudiced his defense. Id. To demonstrate prejudice, the
defendant must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The Supreme Court’s holding in Strickland places the
burden on the defendant who raises a claim of ineffective assistance of counsel, and not
the state, to show a reasonable probability that the result of the proceeding would have
been different, but for counsel’s allegedly deficient performance. See Wong v.
Belmontes, 558 U.S. 15, 27 (2009).
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 unreasonable-a substantially higher threshold.’” Knowles
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v. 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 below Strickland’s standard.” Harrington v. Richter, 562 U.S.
at 101. Indeed, “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. at 664).
Pursuant to the § 2254(d)(1) standard, a “doubly deferential judicial review” applies to a
Strickland claim brought by a habeas petitioner. Id. This means that on habeas review of
a state court conviction, “[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. “Surmounting Strickland's high bar is never an easy
task.” Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Petitioner first contends that trial counsel was ineffective for failing to call
Sergeant Martel as a witness at his re-trial to refute Allen’s testimony that when he
identified another suspect as the shooter in a photo array while he was in the hospital, it
was because he was under the influence of morphine. Petitioner contends that at his first
trial, which resulted in a hung jury on the first degree murder charge, Sergeant Martel
testified that Allen was coherent when he identified a Deonte Miller as the shooter and
that based on this identification, Martel prepared a search warrant for Miller’s home.
The Michigan Court of Appeals rejected petitioner’s claim:
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At defendant’s first trial Allen testified that on the date of the incident, when
he first had contact with the police, he was in the hospital and “had like a lot
of morphine inside me.” Allen testified that he was unable to write at that
time and the officers asked him to explain what had happened. Allen testified
that officers also showed him six photographs and that he was able to identify
someone in the photographs but that he does not know who he identified
because “at the time ... I was so out of it.” Allen testified that he identified
the person who looked closest to defendant because he really did not know
defendant. It is undisputed that Allen identified someone other than
defendant as the shooter in the photo array.
Martel testified [at petitioner’s first trial] that he was not in the room when
Allen made an identification of someone in the photo lineup. He testified that
he also took a statement from Allen. He testified that Allen may have been
on some medication or painkillers when he gave the statement to Martel, but
that Allen seemed coherent. Martel testified that he would not have taken his
statement had he not believed Allen to be coherent.
It is true that Martel’s testimony would have placed doubt on Allen’s
testimony that he mistakenly identified someone other than defendant in the
photo lineup due to drug intoxication. However, decisions on whether to call
or question witnesses are presumed to be matters of trial strategy that will not
be second-guessed on appeal. Even if counsel’s failure to call Martel as a
witness was in error, it cannot be said to have been outcome determinative.
This is necessarily so, as Allen participated in a live lineup after being
released from the hospital and identified defendant, who was irrefutably part
of that lineup, as the shooter. Thus, Allen’s later positive identification of
defendant as the shooter would likely have negated any effect of his initial
photo identification of another person as the shooter. Thus, counsel did not
render ineffective assistance in failing to call Martel as a witness.
People v. Howard, 2014 WL 5305997, at * 7.
When defense counsel focuses on some issues to the exclusion of others, there is a
strong presumption that he or she did so for tactical reasons, rather than through sheer
neglect, and this presumption has particular force where an ineffective assistance of
counsel claim is asserted by a federal habeas petitioner based solely on the trial record,

16

where a reviewing court “may have no way of knowing whether a seemingly unusual or
misguided action by counsel had a sound strategic motive.” See Yarborough v. Gentry,
540 U.S. 1, 5-6 (2003)(quoting Massaro v. United States, 538 U.S. 500, 505 (2003)).
In the present case, petitioner did not move for a Ginther 3 hearing on his
ineffective assistance of counsel claim, thus, the Michigan Court of Appeals limited their
review of petitioner’s ineffective assistance of counsel claims to mistakes which were
apparent from the record. People v. Howard, 2014 WL 5305997, at * 5.
Although trial counsel did not call Sergeant Martel at the second trial, he did
question Mr. Allen extensively about his identification of petitioner. (Tr. 5/11/11, pp. 92102, 107-08). Counsel obtained an admission from Mr. Allen that he never told the
police that he was “woozy” or under the influence of medication at the time of the photo
array, when he identified someone else as the shooter. Mr. Allen admitted he did not tell
the police that he was in pain or ask them to come back the next day to conduct the photo
show-up. (Id., pp. 94-95). Mr. Allen admitted that he identified another suspect from the
photo array. (Id., pp. 96-97). Counsel obtained an admission from Mr. Allen that when
he went to participate in the live line-up a month later, he was looking for the smallest
person in the line-up. Mr. Allen admitted that petitioner was the smallest person in the
live line-up. Mr. Allen admitted it took him fifteen minutes to identify petitioner at the
live line-up. (Id., pp. 98-102). On re-cross examination, Mr. Allen admitted that he

3

See People v. Ginther, 390 Mich. 436, 443; 212 N.W. 2d 922 (1973).

17

described the shooter as having a goatee but admitted at a later hearing that the suspect
did not have a goatee. Mr. Allen also admitted that petitioner seemed shorter than the
description that Mr. Allen gave of the initial suspect. (Id., pp. 107-08).
Petitioner was not prejudiced by counsel’s failure to call Sergent Martel because
his testimony would be cumulative of other evidence presented at trial in support of
petitioner’s claim that Mr. Allen’s identification of him as the shooter was unreliable.
Wong, 558 U.S. at 22-23; See also United States v. Pierce, 62 F. 3d 818, 833 (6th Cir.
1995). In this case, the jury had significant evidence presented to it that Mr. Allen’s
prior and in-court identifications of petitioner were less than accurate. Because the jury
was “well acquainted” with evidence that would have supported petitioner’s claim that
Mr. Allen misidentified him, additional evidence in support of petitioner’s defense
“would have offered an insignificant benefit, if any at all.” Wong, 558 U.S. at 23.
Petitioner next argues that counsel was ineffective for failing to enter a stipulation
that was entered at his first trial, namely, that Detective Myron Love would testify that
he showed Mr. McFadden a photo lineup; that petitioner’s picture was not included in
this photo lineup; that McFadden picked out three people, and that Detective Love could
not remember who McFadden picked out.
The Michigan Court of Appeals rejected this claim:
It is not clear from the record why the above stipulation [at the first trial] was
entered. However, it is clear that Love appeared at defendant’s second trial
and testified. Thus, a stipulation as to what he would have testified to was
obviously not an option at that point. Defendant has also provided nothing
to indicate that defense counsel failed to request the same stipulation, rather
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than that he perhaps sought the same stipulation and was denied the
opportunity to present it at trial instead of Love’s live testimony. Given the
above, it cannot be found that counsel was ineffective for failing to procure
the stipulation.
Moreover, the only way in which Love’s testimony at trial differed from the
stipulation was that at defendant’s trial, Love testified that he was unsure
whether defendant’s photo was included in the photo array and the stipulation
provided that defendant’s photo was not in the photo array. While defendant
makes much of this distinction and contends that the difference was
significant in undermining McFadden’s testimony at trial that he was positive
he picked defendant’s photo out of the photo array, defense counsel elicited
from Love that had McFadden picked defendant out of a photo array they
would have had documentation of the same and they did not. Thus, counsel
effectively undermined McFadden’s credibility in asserting that he had picked
defendant out of a photo lineup despite the difference between the stipulation
and the live testimony. Defense counsel was thus not ineffective in failing to
procure the same stipulation regarding Love’s testimony that was presented
at his first trial.
People v. Howard, 2014 WL 5305997, at * 7–8 (emphasis original).
Petitioner is not entitled to relief on his second ineffective assistance of counsel
claim for two reasons.
First, petitioner failed to show that counsel did not attempt to obtain a stipulation
to Detective Love’s testimony or that the prosecutor would have agreed to such a
stipulation, thus counsel was not ineffective for failing to obtain such a stipulation. See
e.g. Hilliard v. Hudson, 599 F. Supp. 2d 921, 931 (N.D. Ohio 2009)(defendant charged
with having weapon under disability was not denied effective assistance of counsel due
to trial counsel’s failure to stipulate to his prior convictions, where state was required to
prove prior conviction beyond reasonable doubt, and state and trial court were not
required to accept defendant’s stipulation to prior conviction).
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Secondly, although Detective Love’s testimony at trial was that he was unsure
whether petitioner’s photograph was in the photo array, as opposed to the stipulation
which indicated that petitioner’s photograph was definitely not in the array, trial counsel
nonetheless obtained an admission from Detective Love that had McFadden identified
petitioner at the photo array, the police would have had documentation of the same and
they did not. This effectively undermined Mr. McFadden’s trial testimony that he
identified petitioner at the photo array. Any decision by counsel not to stipulate to the
admission of Detective Love’s testimony was a strategic choice that defeats petitioner’s
ineffective assistance of counsel claim. Cf. Doss v. Bock, 89 F. App’x. 964, 965 (6th Cir.
2004)(Defense counsel’s stipulation to admission of witness’s testimony from
defendant’s first trial was strategic choice that did not support claim of ineffective
assistance of counsel, in murder prosecution, where counsel entered into stipulation both
because witness was ill on day he was expected to testify and counsel wanted to avoid
possibility that another witness would lie on the stand).
Petitioner finally claims that trial counsel was ineffective in declining to
cross-examine Investigator Barbara Simon about her alleged mistreatment of the persons
she interrogated. At petitioner’s first trial, trial counsel obtained an admission from
Simon that she lied to suspects during interrogations, had cursed at them, and had
threatened them that if they did not talk they were going to jail. Counsel at petitioner’s
first trial asked Simon if she threatened witness Bobby Bailey while questioning him.
Simon denied threatening him, telling him to shut up or threatening to ruin his business if
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he did not offer incriminating information against petitioner.
The Michigan Court of Appeals rejected petitioner’s claim:
While defendant argues that Simon’s alleged threats were an important piece
of the defense theory that the police engaged in misconduct, defendant has
identified no other alleged acts of misconduct on the part of the police or
further explained how any theory of misconduct was conveyed to the jury and
influenced or was intended to influence his case. And, any admissions that
first trial counsel elicited form Simon about any untoward treatment of
persons she questioned was limited to treatment of suspects—not of witnesses
such as Bailey.
Additionally, because Simon unequivocally denied making any threat in any
form to Bailey in the first trial, it was reasonable for defense counsel at
defendant’s second trial to conclude she would testify consistently and deny
any wrongdoing. And on direct examination by the prosecution, she, in fact,
did. Thus, it would be a reasonable trial strategy to elicit from Bailey, as
defense counsel did, that Simon had threatened him and that Bailey had just
agreed to whatever she said due to the threats, that Simon told him to shut up
and would not let him talk and just wanted to make the shooter defendant, and
let those accusations stand unanswered by Simon to the greatest degree
possible. Though the prosecutor asked Simon on direct whether she had
threatened Bailey during her questioning of him and she again denied making
any threats, there would be nothing gained by defense counsel again asking
her the same questions and having her reiterate her denials. This Court will
not substitute its judgment for trial counsel’s in matters of trial strategy.
People v. Howard, 2014 WL 5305997, at * 8 (internal citation omitted).
In the present case, defense counsel elicited testimony from Mr. Bailey that
Investigator Simon had threatened him and that he agreed to whatever she said because
of these threats, that Simon told him to shut up and would not let him talk, and that she
wanted Bailey to incriminate petitioner. Counsel was not ineffective in failing to crossexamine Investigator Simon about her poor treatment of witnesses because such
impeachment would have been cumulative of evidence that counsel obtained through
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another witness. See Lint v. Prelesnik, 542 F. App’x. 472, 478 (6th Cir. 2013). Petitioner
is not entitled to relief on his second claim.
C. Claim # 3. The perjury claim.
Petitioner claims that he is entitled to a new trial because the prosecutor
introduced perjured testimony. Petitioner contends that Mr. McFadden committed
perjury at the second trial when he testified that he positively identified petitioner in a
photo array, because this testimony is contrary to the stipulation entered in the first trial
of Detective Love that petitioner was not in the photo array, as well as Love’s testimony
in the second trial that if McFadden had identified petitioner, there would have been a
record of the him doing so, but there was none. Petitioner further claims that Detective
Love committed perjury at the second trial when he testified he was unsure whether
petitioner’s photo was in the array because it was contrary to the stipulation in the first
trial that petitioner’s photo was not in the array.
The Michigan Court of Appeals rejected petitioner’s claim:
There is no indication in the record that the prosecutor, who was the same
person for both trials, concealed any prior contradictory statements or elicited
and allowed perjured testimony to stand, or even that the statements were, in
fact contradictory or perjured. With respect to Love, as previously indicated,
a stipulation was entered in the first trial that “... if Detective Myron Love
showed, the testimony would be Detective Myron Love showed Frederick
McFadden a photographic line-up regarding the shooting of Tyrone Simpson.
In front of Detective Love, Frederick McFadden picked out three people.
Detective Love does not remember who Frederick McFadden identified, but
Deonte Howard was not one of those people.” The prosecutor added, “He
was no[t] in the line-up.” At this point defense counsel stated, “Right.
Deonte Howard was not in the photographic line-up that was shown to
Frederick McFadden....” The prosecutor stated, “That’s correct, Judge. And
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I’ve sign[ed] the document to that effect.”
At defendant’s second trial, Love appeared as a witness and testified that he
showed a photo array with six photos to McFadden. When advised that there
were two different suspects involved in the case, Love indicated that he
believed he was involved with the first suspect [Deonte Miller]. Love
testified that when shown the photo array, McFadden picked out three people
that he indicated he recognized. Love further testified that he was “not really
positive” if defendant’s photo was in the photo array. Love testified that he
did not have a copy of the photo array and he had no documentation to show
that McFadden had picked defendant out of the photo array. Love testified
that had McFadden picked out defendant, they would have had documentation
of the same.
Clearly, Love was not in charge of what the prosecutor and defense counsel
in the first trial placed on the record as far as the stipulation that defendant
was not part of the photo array shown to McFadden. The prosecutor was the
individual who volunteered this information as part of the stipulation so likely
had a basis for making such a statement, but that would be bare speculation
at this point. In any event, Love’s live testimony at defendant’s second trial
does not contradict this stipulation. Instead, Love simply stated he was “not
positive” whether defendant’s photo was or was not part of the array,
indicating a lapse of memory, not a material, willful false statement.
Concerning McFadden, at defendant’s first trial McFadden testified that he
was shown three pages of pictures and that he picked out “the shooter and two
drivers.” At defendant’s second trial, McFadden testified that he saw three
pictures and that he picked out two people. McFadden specifically testified
that he picked out defendant and the driver. He testified that he was
“positive” that he picked out defendant in the photos. Notably, the
prosecution did not ask McFadden any questions about the photo
identification on direct examination—it was defense counsel who elicited this
information on cross-examination. In any event, comparing the testimony at
the two trials, while there are some differences, the significant factor is the
absence of any mention of defendant in McFadden’s first testimony.
McFadden did not testify at the first trial that he picked defendant out of the
photo array; he testified that he picked out the shooter. Thus there is no
conflict with respect to defendant in his testimony at defendant’s second trial.
According to defendant, McFadden’s testimony that he identified defendant
as the shooter in the photo array is nevertheless clearly false. However, all
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inconsistencies were disclosed to the jury and it was for the jury to determine
whether McFadden’s trial testimony, including his alleged identification of
defendant in a photo array, was credible.
Were we to find that the testimony was, in fact, false, it cannot be concluded
that the admission of the testimony affected the jury’s verdict and thus the
outcome of the trial. Not only did McFadden identify defendant in court as
the shooter, several other eyewitnesses, whose credibility defendant does not
challenge, also unequivocally identified defendant as the shooter.
People v. Howard, 2014 WL 5305997, at * 9–10 (internal citations omitted).
The deliberate deception of a court and jurors by the presentation of known and
false evidence is incompatible with the rudimentary demands of justice. Giglio v. United
States, 405 U.S. 150, 153 (1972). There is also a denial of due process when the
prosecutor allows false evidence or testimony to go uncorrected. Napue v. Illinois, 360
U.S. 264, 269 (1959)(internal citations omitted). To prevail on a claim that a conviction
was obtained by evidence that the government knew or should have known to be false, a
defendant must show that the statements were actually false, that the statements were
material, and that the prosecutor knew they were false. Coe v. Bell, 161 F. 3d 320, 343
(6th Cir. 1998). However, a habeas petitioner must show that a witness’ statement was
“indisputably false,” rather than misleading, to establish a claim of prosecutorial
misconduct or a denial of due process based on the knowing use of false or perjured
testimony. Byrd v. Collins, 209 F. 3d 486, 517-18 (6th Cir. 2000).
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 herself or changes his or her story also does not establish
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perjury either. Malcum v. Burt, 276 F. Supp. 2d 664, 684 (E.D. Mich. 2003)(citing
Monroe v. Smith, 197 F. Supp. 2d 753, 762 (E.D. Mich. 2001)). A habeas petition
should be granted if perjury by a government witness undermines the confidence in the
outcome of the trial. Id.
Petitioner failed to establish that Mr. McFadden or Detective Love committed
perjury. Petitioner points to the fact that Mr. McFadden’s testimony at the second trial
was inconsistent with his testimony from the first trial and was contradicted by both the
stipulation from the first trial regarding Detective Love’s proposed testimony and
Detective Love’s testimony from the second trial. Petitioner also points to the fact that
Detective Love’s testimony at the second trial was contrary to the stipulation entered at
the first trial. Petitioner merely alleges inconsistencies in these witnesses’ testimony,
thus, he has failed to establish that the witnesses committed perjury, so as to entitle him
to habeas relief on this claim. Malcum, 276 F. Supp. 2d at 684. Conclusory allegations
of perjury in a habeas corpus petition must be corroborated by some factual evidence.
Barnett v. United States, 439 F.2d 801, 802 (6th Cir.1971). More importantly, assuming
that Mr. McFadden or Detective Love testified falsely concerning Mr. McFadden’s
identification at the photo array, petitioner is still not entitled to habeas relief on his
perjury claim, because he has failed to show that the prosecutor knew that these
witnesses testified falsely on this matter. See Rosencrantz v. Lafler, 568 F. 3d 577, 587
(6th Cir. 2009).
Finally, in light of the fact that Mr. McFadden positively identified petitioner at
25

trial and at least three other eyewitnesses unequivocally identified him as the shooter,
testimony whether Mr. McFadden positively identified petitioner at a photo array was
not material to petitioner’s conviction, because this evidence was not a “crucial link” in
the case against petitioner. See e.g. Foley v. Parker, 488 F.3d 377, 392 (6th Cir. 2007);
See also Rosencrantz v. Lafler, 568 F.3d at 588. Petitioner is not entitled to relief on his
third claim.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court will also
deny a certificate of appealability to petitioner. In order 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, the applicant is
required to show that 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,
483-84 (2000). When a district court rejects 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. Id. at
484. “The district 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.
For the reasons stated in this opinion, the Court will deny petitioner a certificate
26

of appealability because he has failed to make a substantial showing of the denial of a
federal constitutional right with respect to any of the claims. The Court will also deny
petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. See
Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in
forma pauperis.
s/John Corbett O’Meara
United States District Judge
Date: May 17, 2017

I hereby certify that a copy of the foregoing document was served upon the parties
of record on this date, May 17, 2017, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

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