Beltowski v. Brewer

Filing 7

OPINION AND ORDER Denying 1 Petition for Writ of Habeas Corpus. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN MICHAEL-DORMAN BELTOWSKI,
Petitioner,
v.

Case No. 5:16-cv-14224
Hon. John Corbett O’Meara

SHAWN BREWER,
Respondent.
___________________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS
CORPUS, AND (2) GRANTING PARTIAL CERTIFICATE OF
APPEALABILITY
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254.
Petitioner Kevin Michael-Dorman Beltowski was convicted after a jury trial in the
Wayne Circuit Court of second-degree murder, MICH. COMP. LAWS § 750.317. Petitioner
was sentenced as a third-time habitual felony offender to 20 to 40 years in prison.
The petition raises six substantive claims and makes two additional procedural
arguments: (1) the trial court erroneously instructed the jury on self-defense, (2)
insufficient evidence was presented at trial to sustain the verdict, (3) the trial judge’s
conduct deprived Petitioner of a fair trial, (4) newly discovered evidence shows that
voluntary drug use was a substantial contributing cause of the victim’s death, (5) the
prosecutor engaged in misconduct, (6) Petitioner was denied the effective assistance
of trial counsel, (7) Petitioner is entitled to an evidentiary hearing, and (8) Petitioner
has demonstrated cause to excuse any state court procedural defaults.
The Court finds that Petitioner’s claims are without merit. Therefore, the

petition will be denied. The Court will, however, grant Petitioner a certificate of
appealability with respect to his self-defense jury instruction claim, but it will deny a
certificate of appealability with respect to his other claims.

I. Background
This case involves the death of Timothy Moraczewski occurring on September
26, 2010. Moraczewski was killed at a marijuana grow-house in Detroit he operated
together with Petitioner. The cause of death was asphyxiation. The victim was found
by his brother and another man with a nylon strap attached to a rifle that was tightly
twisted around his neck. Petitioner admitted he fought with the victim on the date of
his death, but he claimed the death was the result of an accident or self-defense after
the victim attacked him. The prosecutor’s theory was that during the physical
altercation Petitioner intentionally killed the victim by continuing to strangle him with
the rifle strap after the victim lost consciousness.
At trial, John Bechinski testified he was the forensic pathologist who performed
the autopsy on the victim. Dkt. 5-5, at 72. He opined that the cause of death was
asphyxia, and the manner of death was homicide. Id. Bechinski noted there was a
ligature mark on the victim’s neck, indicating that he did not die as the result of
manual strangulation, but an implement was used to cut-off blood flow to his head. Id,
at 76. Bechinski testified that in cases of strangulation, a person will typically lose
consciousness in ten to fifteen seconds, and if pressure is continued to be applied death
will typically occur within a few minutes. Id., at 79.
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Bechinski also did a toxicology analysis on the victim, and he found the presence
of hydrocodone and alprazolam (Vicodin and Xanax). Id., at 84. Vicodin is an opiate,
and both drugs are sedatives that depress the central nervous system. Id., at 84-85.
The levels for both drugs were elevated, meaning the victim may have been sedated at
the time of his death. Id., at 88. Bechinski nevertheless opined that asphyxia was the
cause of death, and that it was not an overdoes. Id., at 88-89. Bechinski could not say
whether the medications were a contributing cause of death. Id., at 89.
Bechinski also noted abrasions and bruises all over the victim’s body consistent
with him having been in a fight. Id., at 91-92. Bechinski examined the nylon strap of
a rifle provided by the police, and he opined that it was consistent with the injury to
the victim’s neck. Id., at 95.
Among other things, defense counsel cross-examined Bechinski about the drugs
found in the victim’s system. Dkt. 5-6, at 9-10. Bechinski conceded that he did not
know the victim’s tolerance for the drugs. Id. Bechinski could not say how the drugs
affected the victim. Id., at 11.
Jeffrey Moraczewski testified he was the victim’s brother. Id, at 50-51.
Moraczewski knew Petitioner for seventeen years, and he had worked for Petitioner’s
roofing company. Id., at 52-53. Moraczewski testified the victim also worked for and
had been long-time friends with Petitioner. Id., at 54.
Aside from the roofing business, Petitioner ran a marijuana grow operation at
a house located in Detroit. Id., at 57-58. Petitioner financed the operation by renting
the house and providing the equipment, and Petitioner stayed at the house to watch
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over the operation. Id., at 58-59. The operation was going on for about two years at the
time of the victim’s death. Id., at 61.
Moraczewski explained that his brother had a bad knee and bad back from
roofing, so he worked exclusively at the grow operation. Id., at 62. The victim took pain
medications as a result of his roofing injuries. Id., at 63-64. Moraczewski believed
Petitioner and the victim shared equally in the profits from the grow house. Id., at 66.
At the time of his brother’s death, Moraczewski testified that there was tension
between Petitioner and the victim. Id., at 67. Petitioner wanted to start a second grow
house without the victim. Id., 68. Petitioner planned to remove the equipment from the
house where the victim stayed and move it to a second house where Petitioner’s
brother would take over operations. Id., at 68. Petitioner spoke to Moraczewski about
how he would need to sneak the equipment out of the house, and that the house was
in foreclosure anyway. Id., at 69-70. Another source of tension between the two men
was the fact Petitioner and the victim were competing over the affections of the same
women. Id., at 71-75.
On Sunday evening, September 26, 2010, Moraczewski received a phone call
from Petitioner’s number which he initially ignored. Id., 82. A few seconds later
Moraczewski received a text message from Petitioner stating, “911. Call me now.” Id.,
at 83. Moraczewski called Petitioner back. Petitioner told Moraczewski that he just had
a fight with the victim, and “I choked your brother out with his own fuckin’ gun.” Id.,
at 86. Petitioner explained to Moraczewski that “I choked him out until he turned
purple. And I held it for another thirty seconds.” Id.
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Petitioner told Moraczewski the fight started when Petitioner told the victim he
was going to remove the grow equipment. Id., at 88. The victim was angry and shot a
round into the wall next to Petitioner with his rifle. Id., at 89. The men then began to
fight, and Petitioner got on top of the victim. Id. Petitioner said he was able to
unsheathe the victim’s knife from his side. Petitioner pointed the knife at the victim’s
face, but then he threw it across the room. Id., at 92-93. Petitioner did not tell
Moraczewski there was a struggle for control of the rifle. Id., at 98.
Petitioner told Moraczewski that when he was choking his brother with the rifle
strap, the victim tried to “tap out,” meaning he was indicating he wanted to give-up.
Id., at 100. Petitioner told Moraczewski he responded to the victim, “Do you think I’m
gonna let you tap out this time, bitch?” And then he continued to choke the victim for
another thirty seconds. Id., at 101. Petitioner told Moraczewski that his brother was
“not as strong as he thinks he is. He’s a pussy.” Id.
Moraczewski asked Petitioner if he killed his brother. Id., at 102. Petitioner
answered that the victim was still breathing when he left the house. Id., at 102.
Petitioner told Moraczewski with a sense of urgency that he better go over to the
house, however, to see if the victim was still alive. Id., at 102. Moraczewski was very
concerned, and he immediately called his sister and brother-in-law so they could go
together to the house. Id., at 102-03.
Shortly thereafter Moraczewki arrived at the house with his brother-in-law.
They went inside and found the victim lying on a couch. Id., at 107-13. Items were
thrown everywhere. Id., at 114. The victim’s body was twisted in a strange position. Id.,
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at 114. Moraczewski saw a strap wrapped around his brother’s neck. Id. He appeared
to be dead. Id., at 116. Moraczewski tried to take the strap off, but it was too tight to
even fit a finger underneath it. Id., at 117. Finally, he rotated the rifle attached to the
strap four times to loosen and remove it. Id., at 119-122. They then drove the victim
to a near-by hospital where he was declared dead. Id., at 123. Moraczewski called
Petitioner to tell him that the victim was dead, and Petitioner responded by text,
stating, “Tell me this is a joke.” Id., at 105. Moraczewski subsequently told the police
everything Petitioner told him and what he saw when he arrived at the grow house.
Id., at 132 ff.
Michael Mitchell testified he was Jeffrey Moraczewski’s brother-in-law. Dkt. 5-7,
at 23. He had known the victim for eighteen years, and he had known Petitioner for
about seven years. Id., at 24. He testified that on the date of his death, he received a
text message from the victim at 5:45 p.m., lamenting the Detroit Lion’s recent loss. Id.,
at 29-30. About fifteen to twenty minutes later, he got the message from Moraczewski
about Petitioner’s call. Id., at 31, 35. Moraczewski picked him up and they drove to the
victim’s house. Id. They got to the house around 6:30 p.m. Id., at 34.
Mitchell saw the victim lying on the couch. Id., at 35. He appeared to be. Id., at
35-36. Mitchell saw the strap attached to the victim’s neck and the rifle on his back.
Id. He could not get his finger between the strap and the victim’s neck. Id., at 38.
Mitchell heard Moraczewski yell, “You didn’t loosen the strap,” as if he were speaking
to Petitioner. Id., at 39-40. The strap was twisted around the back of the victim’s neck,
and they had to rotate the rifle at least three times to remove it. Id., at 42.
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Detroit Police Officer Frank Hilbert testified he spoke with Moraczewski at the
hospital, and Moraczewski told him what Petitioner told him on the phone. Id., at 124147. Moraczewski told Hilbert that Petitioner said he choked-out the victim after they
had a fight. Id., 148. Moraczewski told Hilbert about Petitioner’s statements regarding
wrapping the gun around victim’s neck and holding it there for thirty seconds. Id, at
148-49. He continued to twist the strap until the victim’s lips and face turned purple.
Id., at 150.
Defense counsel examined Detroit Police Officer Allen Williams about the lack
of forensic evidence collected at the scene. Id., at 148-170.
Gerald Kapinsky testified for the defense. Kapinsky said he was friends with
both Petitioner and the victim. Dkt. 5-9, at 66-104. Kapinsky stopped his relationship
with the victim because Kapinsky was concerned about his and his family’s safety. Id.,
at 74. The victim had a reputation of being “different, weird . . . kind of scary,” Id., at
78-79, wanting “to go out and, and beat somebody up,” and he was “psychotic.” Id., at
81. The victim carried a rifle and knife at all times, and he had shot four or five males
with birdshot from a shotgun at Finney High School which was located directly across
the street from the grow house. When Tim was at the grow house he was always
armed. Id., at 121. Kapinsky testified that when the victim was on Vicodin he was
“definitely stronger,” but the Xanax made him slow down. Id., at 123. The victim had
a big bottle of Vicodin that he would “eat” every morning. Id.
Petitioner testified in his own defense. He testified that the day before the
incident, he tried to come to the grow house, but the victim told him to come the next
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day. Id., at 191. When Petitioner arrived the next day just before 6:00 p.m., the victim
had a rifle slung over his neck and a knife strapped to his side. The victim was agitated
and was angry about Petitioner’s visit. Id.
Petitioner testified the grow operation needed to be moved because the house
was in foreclosure. Petitioner suggested to the victim they split up the operation with
the victim keeping the plants and Petitioner taking the equipment. Id., at 198. The
victim became very angry at this suggestion, so Petitioner sat on the couch because he
did not want to fight. Id., at 201-204. Nevertheless, the victim pointed the rifle at
Petitioner and said, “You think I’m gonna let you walk out of here, like that . . . tell me
I won’t shoot you.” Id., at 204-207. The victim tried to fire the rifle, but the safety was
on. He then fired a shot past Petitioner’s head that hit the wall. Id., at 207-208.
Subsequent investigation, in fact, discovered a bullet hole through a wall in the house.
Petitioner threw his hands in the air and told the victim to take everything, and
the victim stepped back. Id., at 208. Petitioner then tried to leave the house, but the
victim grabbed him at the door and said, “You’re not going anywhere.” Id. The two men
began to wrestle and landed on the couch. Id., at 211. Petitioner testified he grabbed
the barrel of the rifle as the victim began to point it at him. Id., at 211. Petitioner fell
on top of the victim, and he kept telling the victim to stop as he attempted to point the
rifle at him. Id., at 213-14.
When the victim did not stop, Petitioner felt his life was in danger, so he let go
of the rifle and grasped the strap and applied pressure. Id., at 214. Petitioner testified
he never twisted the strap like a tourniquet. Id., at 217. The victim rolled over and
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stood up, but Petitioner managed to hold onto the strap. Id, at 218-19. The victim tried
to “tap” and give up, but Petitioner did not release the pressure on the strap because
he was afraid for his life. Id., at 219-20.
Petitioner pulled the victim back onto him and they both fell onto the couch.
Petitioner was lying on his back, and the victim was lying on top of him with his back
to Petitioner. Id., at 221-22. Petitioner could see the side of the victim’s face and saw
that he lost consciousness, and he held the strap tight against his neck for another
three second. Id., at 223. Petitioner saw and heard that the victim still breathing, so
he found his keys and left the house. Id., at 223-24.
On cross-examination, Petitioner testified he left the house as soon as the victim
lost consciousness. Dkt. 5-10, at 78. He denied he told Jeffrey that he continued to
apply pressure for an additional thirty seconds after the victim was unconscious. Id.,
at 78. He denied he twisted the strap around the victim’s neck on purpose, and he did
not know it was twisted when he left the house. Id., at 81.
Once he was back in his truck Petitioner called the victim’s brother, believing
the victim was still alive. Dkt. 5-9, at 226. Petitioner asked him to contact the victim
and attempt to reason with him. When Petitioner learned that Jeffrey did not hear
back from the victim, Petitioner said he should go to the house and check on him. Id.,
at 229.
Based on this evidence the jury found Petitioner guilty of second-degree murder,
and he was sentenced as indicated above.
Following his conviction and sentence, Petitioner filed a claim of appeal in the
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Michigan Court of Appeals. His appellate brief raised four claims:
I. The cumulative effect of the prosecutor’s misconduct denied defendant
a fair trial.
II. Trial court error infringed on defendant’s due process rights to a fair
trial.
III. Ineffective assistance of counsel denied Defendant a fair trial.
IV. The cumulative effect of error requires that appellant be granted a
new trial.
The Michigan Court of Appeals affirmed in an unpublished opinion. People v.
Beltowski, No. 304254, 2012 WL 4800241 (Mich. Ct. App. Oct 9, 2012).
Petitioner subsequently filed an application for leave to appeal in the Michigan
Supreme Court, raising the same claims as in the Michigan Court of Appeals, and
adding an additional claim:
I. Defendant-Appellant’s appellate counsel was ineffective where she
failed to raise non-frivolous issues on appeal and failed to offer
Defendant-Appellant the necessary assistance he needed to file a timely
Standard 4 supplemental brief on appeal.
The Michigan Supreme Court denied the application because it was not
persuaded that the questions presented should be reviewed by the Court. People v.
Beltowski, 493 N.W.2d 968 (Mich. 2013) (table).
Petitioner subsequently returned to the trial court and filed a motion for relief
from judgment. The motion raised five claims:
I. Defendant Beltowski was denied due process of law and a fair trial
when an erroneous self-defense instruction was given, which deprived
him of the defense by instructing the jury that he could not claim
self-defense if: (1) he “acted wrongfully,” (2) “brought on the assault,” (3)
“and was limited to using self- defense only, to protect himself from the
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imminent unlawful use of force by another,” and (4) only for such time “as
it seems necessary for the purpose of protection.”
II. Newly discovered evidence that high levels of hydrocodone and
alprazolam ingested by the deceased significantly contributed to his death
requires a retrial.
III. The verdict was against the great weight of evidence.
IV. Defendant Beltowski was denied his right to effective assistance of
counsel when 1) he failed to investigate and present toxicology evidence
that the high levels of hydrocodone and alprazolam significantly
contributed to the death, 2) failed to object to an erroneous jury
instruction on self-defense, and 3) failed to object to specific instances of
professional misconduct in the prosecutor’s closing argument.
V. The prosecutor engaged in misconduct in his closing argument by
vouching for his witness and arguing matters not in evidence. Defendant
Beltowski has met the procedural requirements of good cause and actual
prejudice under MCR 6.508(D) and an evidentiary hearing is required.
The trial court denied the motion for relief from judgment. Dkt. 5-18. The court
found that review of Petitioner’s new claims were barred under Michigan Court Rule
6.508(D)(3), and because he had failed to demonstrate “merit in any of the . . .
arguments posited.” Id., at 8.
Petitioner filed an application for leave to appeal in the Michigan Court of
Appeals, raising the same claims. The Michigan Court of Appeals denied the
application for failure to establish entitlement to relief under Rule 6.508(D). People v.
Beltowski, No. 326192 (Mich. Ct. App. June 22, 2015). Petitioner then applied for leave
to appeal in the Michigan Supreme Court, but that court also denied leave to appeal
with citation to Rule 6.508(D). People v. Beltowski, 882 N.W.2d 130 (Mich. 2016)
(table).

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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 state court adjudication is “contrary to” Supreme Court precedent under §
2254(d)(1) “if the state court applies a rule that contradicts the governing law set forth
in [Supreme Court] cases” or “if the state court confronts a set of facts that are
materially indistinguishable from a decision [of the Supreme Court] and nevertheless
arrives at a [different result].” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal
quotation marks omitted).
Under the “unreasonable application” clause of § 2254(d)(1),
even clear error will not suffice. Rather, as a condition for obtaining
habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.

12

White v. Woodall, ___ U.S. ___, 134 S. Ct. 1697, 1702, 188 L. Ed. 2d 698 (2014)
(citations, quotation marks, and alterations omitted).
“When reviewing state criminal convictions on collateral review, federal judges
are required to afford state courts due respect by overturning their decisions only when
there could be no reasonable dispute that they were wrong.” Woods v. Donald, ___ U.S.
___, 135 S. Ct. 1372, 1376, 191 L. Ed. 2d 464 (2015). “Federal habeas review thus exists
as ‘a guard against extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal.’” Id. (quoting Harrington v.
Richter, 562 U.S. 86, 102-03 (2011)). “[W]hether the trial judge was right or wrong is
not the pertinent question under AEDPA.” Renico v. Lett, 559 U.S. 766, 778 n.3 (2010).
The question is whether the state court’s application of federal law was “objectively
unreasonable.” White, 134 S. Ct. at 1702. In short, the standard for obtaining federal
habeas relief is “difficult to meet . . . because it was meant to be.” Burt v. Titlow, ___
U.S. ___, 134 S. Ct. 10, 16, 187 L. Ed. 2d 348 (2013)(internal quotation marks omitted).

III. Analysis
A. Procedural Default
Respondent contends that several of Petitioner’s claims are procedurally
defaulted because the errors were not preserved at trial or on direct appeal. Under the
procedural default doctrine, a federal habeas court will not review a question of federal
law if a state court’s decision rests on a substantive or procedural state law ground
that is independent of the federal question and is adequate to support the judgment.
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See Coleman v. Thompson, 501 U.S. 722, 729 (1991). However, procedural default is
not a jurisdictional bar to review of a habeas petition on the merits. See Trest v. Cain,
522 U.S. 87, 89 (1997). Additionally, “federal courts are not required to address a
procedural-default issue before deciding against the petitioner on the merits.” Hudson
v. Jones, 351 F. 3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518,
525 (1997)). It may be more economical for the habeas court to simply review the
merits of the petitioner’s claims, “for example, if it were easily resolvable against the
habeas petitioner, whereas the procedural-bar issue involved complicated issues of
state law.” Lambrix, 520 U.S. at 525. In the present case, the Court deems it more
efficient to proceed directly to the merits, especially because Petitioner alleges that his
attorneys were ineffective for failing to preserve the defaulted claims.

B. Jury Instructions
Petitioner first claims his trial was rendered fundamentally unfair when the
trial court deviated from the language of Michigan’s Standard Jury Instructions and
erroneously instructed the jury on the law of self-defense. This claim was raised in the
state courts in Petitioner’s motion for relief from judgment. The trial court found the
claim defaulted under Michigan Court Rule 6.508(D)(3), but it also found that
Petitioner had failed to demonstrate plain error. Aside from its procedural default
argument, Respondent asserts that the rejection of the claim for “plain error” by the
state trial court did not involve an unreasonable application of established Supreme
Court law. See Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009) (holding that
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claim reviewed for “plain error” is entitled to AEDPA deferential standard); c.f. Frazier
v. Jenkins, 770 F.3d 485, 497 n. 5 (6th Cir. 2014) (stating in dicta that plain error
review is not an adjudication on the merits).
The trial court instructed the jury on self-defense as follows:
The defendant does not have to prove that he acted in self-defense;
instead, the prosecutor must prove, beyond a reasonable doubt, that the
defendant did not act in self-defense.
The defendant claims that he acted in lawful self-defense.
A person has the right to use force to defend himself under certain
circumstances.
If the defendant is found to have acted in lawful self-defense, his
actions are justified, and he is not guilty of homicide, murder, first
degree, premeditated, of Timothy Moraczewski, and the less serious
offense of murder second degree, and voluntary manslaughter of Timothy
Moraczewski.
You should consider all the evidence and use the following rules to
decide whether the defendant acted in lawful self-defense. Remember to
judge the defendant’s conduct according to how the circumstances
appeared to him at the time he acted.
First, at the time he acted, the defendant must not have been
engaged in the commission of a crime.
Second, when he acted, the defendant must have honestly and
reasonably believed that he had to use force to protect himself from the
imminent unlawful use of force by another.
If his belief was honest and reasonable, he could act at once, to
defend himself, even if it turns out later that he was wrong about how
much danger he was in.
Third, a person is only justified in using the kind of force that was
appropriate to the attack made and the circumstances as he saw them.
When you decide whether the force used was what seemed
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necessary, you should consider whether the defendant knew about any
other ways of protecting himself. But you may also consider how the
excitement of the moment effected the choice the defendant made.
Fourth, the right to defend one’s self only lasts as long as it seems
necessary for the purpose of protection.
Fifth, the person claiming self-defense must not have acted
wrongfully and brought on the assault.
However, if the defendant only used words, that does not prevent
him from claiming self-defense if he was attacked.
Dkt. 5-11, at 99-101.
Petitioner raises multiple objections to this instruction. First, he asserts the fifth
listed element that the defendant not act “wrongfully” to be able to claim self-defense
is overly broad because self-defense is only precluded under Michigan law when the
defendant is committing a crime. Petitioner asserts that as instructed the jury might
have erroneously rejected the defense if it believed Petitioner merely acted morally
wrongfully. Second, Petitioner likewise asserts that the fifth element of the instruction
erroneously precludes self-defense if the defendant “brought on the assault.” He asserts
that under this language the jury might have erroneously rejected the defense if it
believed Petitioner “brought on the assault” by coming over the house to remove the
equipment. Third, Petitioner asserts that the instruction erroneously required the
decedent to use unlawful force for Petitioner to claim self-defense, and the jury was
never instructed on how to determine whether the use of force by the victim was
lawful. Fourth, Petitioner asserts that the instruction erroneously instructed the jury
that self-defense is available only “as long as it seems necessary for the purposes of

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protection.” Petitioner asserts that the instruction fails to define what is meant by
“seems necessary” and “protection.” Finally, Petitioner asserts that the instruction
failed to include language that self-defense permits the use of deadly force, and it failed
to list factors for the jury to consider in determining whether the accused had a
reasonable belief of death or serious bodily injury.
The trial court rejected the claim in the alternative on the merits as follows:
Under the facts of this case, this Court is persuaded that the error
involved here was not decisive of the outcome. Defendant presents
winding arguments regarding the trial court instructing the jury that if
he acted wrongfully or brought on the assault, he would not be afforded
the right to claim self-defense, which erroneously precludes his use of
self-defense. However, both of these terms essentially describe a person
who is the aggressor, or initiator of an altercation cannot turn around and
escalate or use deadly force, if the other person chooses to fight back.
Here, the jury was given the choice to either believe the events as
testified to by the defendant, or as laid before them by the prosecution.
Conversely, if the jury did believe the defendant, he would have been
protected under the [Self-Defense Act], even if he used deadly force.
Ultimately, the jury did not believe the defendant’s testimony, and
deemed him the aggressor in this situation. As such, this Court finds
there was no error with defendant’s jury instructions, and defendant is
unable to avoid forfeiture of this issue because he has not established that
he was prejudiced by the court’s plain error . . . . In light of the trial
court’s instructions and the evidence presented, there is no basis for
concluding that the error seriously affected the fairness, integrity or
public reputation of judicial proceedings.
Dkt. 5-18, at 5.
This decision, though failing to address each of Petitioner’s objections to the
self-defense instruction individually, did not involve an unreasonable application of
clearly established Supreme Court law. The burden of establishing that an
instructional error warrants habeas relief rests with a habeas petitioner, and the

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burden is a heavy one. The question in a collateral proceeding–such as Petitioner’s
motion for relief from judgment or this habeas proceeding–is not merely whether the
challenged “instruction is undesirable, erroneous, or even ‘universally condemned,’ but
[whether] it violated some right which was guaranteed . . . by the Fourteenth
Amendment.” Donnelly v. DeChristofo, 416 U.S. 637, 643 (1974). In other words, the
relevant inquiry is “whether the ailing instruction so infected the entire trial that the
resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991)
(quotation omitted).
When assessing the propriety of a challenged instruction, a court must not view
the instruction in isolation but must consider it within the context of the entire jury
charge and the evidence introduced at trial. Jones v. United States, 527 U.S. 373, 391
(1999). An incomplete instruction is less likely to be prejudicial than an instruction
that misstates the law. Henderson v. Kibbe, 431 U.S. 145, 154-55 (1977). Every
ambiguity, inconsistency or deficiency in a jury instruction does not, standing alone,
necessarily constitute a violation of due process. Waddington v. Sarausad, 555 U.S.
179, 190 (2009). To warrant habeas relief, it is not enough that there might be some
“slight possibility” that the jury misapplied the instruction. Id. at 191.
Petitioner’s argument has some force. The instruction read by the trial court
deviated from Michigan’s standard instruction on self-defense and the language of
Michigan’s Self-Defense Act. See Mich. Comp. Laws 780.972(1); Michigan Criminal
Jury Instructions 2d, 7.15. The Self-Defense Act allows a person to use deadly force if:
(1) he is not engaged in the commission of a crime at the time he uses force, (2) he is
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at a place he has a legal right to be, and (3) he honestly and reasonably believes that
the use of deadly force is necessary to prevent immanent death or great bodily harm
to himself of another person. Id. The statute modified the traditional duty to retreat
rule, but did not replace the common law right to self-defense. People v. Guarjardo, 300
Mich. App. 26, 38 (2013).
Petitioner posits a number of hypothetical findings the jury might have made
that would have led them to erroneously reject self-defense under the instructions as
read. He asserts that the jury might have found that Petitioner acted “wrongfully” and
“brought on the assault” by going to the house and arguing with the victim, and as a
result rejected self-defense under the trial court’s fifth instructed element of selfdefense though such a finding does not negate a valid self-defense claim under
Michigan law. He similarly asserts that the jury–without further guidance–might have
found that the victim’s use of force was lawful, thus erroneously precluding self-defense
under the trial court’s second instructed element. Finally, Petitioner hypothesizes that
the jury might have rejected the defense under the erroneous belief that force was no
longer required “for purposes of protection,” an undefined term of the instructed fourth
element.
Given the evidence presented at trial and the arguments presented by the
parties at trial, however, there is no reasonable probability that the jury rejected
Petitioner’s self-defense claim on any of these hypothetical bases. This might be a
different case if Petitioner had shot the victim and instantly killed him during the
course of an active fight. In such a case there might have been close questions about
19

whether Petitioner honestly and reasonably was in fear for his life while the victim was
conscious and armed and fighting. But the evidence presented at trial indicates
Petitioner rendered the victim unconscious by strangling him with the rifle strap. The
medical examiner testified that a person would have been rendered unconscious, and
obviously helpless, after ten to fifteen seconds of being strangled with a ligature.
Petitioner told the victim’s brother minutes after the incident that he “choked out” the
victim, and he held the strap tight for another thirty seconds after he passed-out.
The problem for Petitioner and his defense is the period of time after he
rendered the victim helpless. At that point, the victim was unconscious and no longer
presented a threat. According to Petitioner, the victim was still breathing and he
immediately left without knowing that the rifle strap was wrapped around the victim’s
neck. But this testimony runs contrary to the testimony of the victim’s brother who
said that Petitioner told him that he continued to choke the victim for another thirty
seconds after he lost consciousness. Though Petitioner testified that the victim’s
brother was lying about this statement, the brother told a police officer the same thing
hours after the incident at the hospital. Additionally, both the victim’s brother and
Mitchell found the victim with the strap twisted around his neck so tightly that they
could not get their fingers underneath it.
Given this evidence, there is no substantial probability that the jury erroneously
rejected self-defense because it thought that Petitioner’s conduct after he rendered the
victim unconscious was merely “wrongful,” that the victim was using lawful force at
that point (he was unconscious), or that the continued use of force was required for
20

“purposes of protection.” That is, none of the hypothetical findings posited by Petitioner
applied to the facts of the case after Petitioner rendered the victim unconscious and
helpless. After Petitioner refused to allow the victim to “tap out,” a reasonably
debatable act of self-defense turned into a clear case of murder.
The Supreme Court has held that in determining whether to grant relief to a
habeas petitioner based upon an erroneous jury instruction, a reviewing court must
determine whether the instruction had a substantial and injurious effect or influence
on the jury’s verdict. Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008). The Court
concludes that Petitioner is not entitled to habeas relief because any errors in the
self-defense instruction did not have a substantial and injurious effect or influence on
the verdict in light of the lack of evidence to support Petitioner’s self-defense claim and
the strong evidence indicating that Petitioner murdered the victim after he rendered
him unconscious.

C. Sufficiency of the Evidence
Petitioner asserts in his second claim there was insufficient evidence presented
at trial to prove he did not act in self-defense. He also asserts the great weight of the
evidence was contrary to the jury’s verdict. Neither claim presents a cognizable issue.
With respect to the great weight of the evidence, Petitioner’s argument is a
state-law claim that is not reviewable by a federal court in a habeas proceeding. See
Nash v. Eberlin, 258 F. App’x 761, 764 n.4 (6th Cir. 2007); Cukaj v. Warren, 305 F.
Supp. 2d 789, 796 (E.D. Mich. 2004) (“A federal habeas court . . . has no power to grant
21

habeas relief on a claim that a state conviction is against the great weight of the
evidence.”).
With respect to the sufficiency of the evidence to disprove self-defense, the claim
is non-cognizable on habeas review because it cannot be supported by clearly
established by Supreme Court law. Under Michigan law, self-defense is an affirmative
defense. See People v. Dupree, 486 Mich. 693, 704, 712 (2010). “An affirmative defense,
like self-defense, ‘admits the crime but seeks to excuse or justify its commission. It does
not negate specific elements of the crime.’” People v. Reese, 491 Mich. 127, 155, n. 76
(2012)(quoting Dupree, 486 Mich. at 704, n. 11). Although under Michigan law the
prosecutor is required to disprove a claim of self-defense or defense of others, See
People v. Watts, 61 Mich. App. 309, 311 (1975), “[p]roof of the nonexistence of all
affirmative defenses has never been constitutionally required. . . .” See Smith v. United
States, 568 U.S. 106, 133 S. Ct. 714, 719 (2013) (quoting Patterson v. New York, 432
U.S. 197, 210 (1977)). The Supreme Court and the Court of Appeals for the Sixth
Circuit have rejected the argument that the Constitution requires the prosecution to
disprove self-defense beyond a reasonable doubt. See Gilmore v. Taylor, 508 U.S. 333,
359 (1993)(Blackmun, J., dissenting) (“In those States in which self-defense is an
affirmative defense to murder, the Constitution does not require that the prosecution
disprove self-defense beyond a reasonable doubt”); Martin v. Ohio, 480 U.S. 228, 233-36
(1987); see also Allen v. Redman, 858 F. 2d 1194, 1197 (6th Cir.1988) (explaining that
habeas review of sufficiency-of-the-evidence claims is limited to elements of the crimes
as defined by state law and citing Engle v. Isaac, 456 U.S. 107 (1982), and Duffy v.
22

Foltz, 804 F.2d 50 (6th Cir. 1986)). Therefore, “the due process ‘sufficient evidence’
guarantee does not implicate affirmative defenses, because proof supportive of an
affirmative defense cannot detract from proof beyond a reasonable doubt that the
accused had committed the requisite elements of the crime.” Caldwell v. Russell, 181
F.3d 731, 740 (6th Cir. 1999).
In any event, even if this claim was cognizable Petitioner would not be entitled
to habeas relief. The critical inquiry on review of the sufficiency of the evidence to
support a criminal conviction is, “whether the record evidence could reasonably support
a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318
(1979). 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). 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). 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, 566 U.S. 650, 132 S. Ct. 2060, 2065 (2012).
As indicated above, under Michigan law one acts lawfully in self-defense if he
honestly and reasonably believes that he is in danger of serious bodily harm or death
as judged by the circumstances as they appeared to the defendant at the time of the
act. Blanton v. Elo, 186 F.3d 712, 713, n. 1 (6th Cir. 1999)(citing People v. Heflin, 434
23

Mich. 482 (1990)). There was evidence presented at trial supporting Petitioner’s claim
of self-defense for the period of time prior to rendering the victim unconscious. But the
prosecution presented evidence from which a rational trier of fact could have concluded
beyond a reasonable doubt that Petitioner did not act in self-defense. The medical
examiner testified that a person who is strangled will lose consciousness in seconds,
but death will not result unless pressure is applied for an additional period of a few
minutes. The victim’s brother testified to statements made by Petitioner that he
“choked out” the victim, did not let him “tap out,” but instead he continued to strangle
him for another thirty seconds. What is more, the victim’s brother and brother-in-law
found the rifle strap twisted tightly around victim’s neck like a tourniquet. Viewing the
evidence presented most favorably to the prosecution, sufficient evidence was
presented to disprove self-defense. The claim is without merit.

D. Trial Judge’s Conduct
Petitioner’s third claim raises several objections to the conduct of the trial judge.
He argues the trial judge, (1) improperly questioned the medical examiner, (2) denied
the jury request to review Petitioner’s testimony during their deliberations, and (3)
failed to grant a mistrial motion after the prosecutor committed misconduct.
A defendant has a right to a trial before an impartial judge. Tumey v. Ohio, 273
U.S. 510, 535 (1927). But comments that do not exhibit favoritism or antagonism for
a party are insufficient to establish judicial bias. See Liteky v. United States, 510 U.S.
540, 555 (1994). Indeed, “expressions of impatience, dissatisfaction, annoyance, and
24

even anger” are insufficient to show bias. Id. at 555-56.

1. Questioning Medical Examiner
Petitioner asserts the following exchange with the trial judge during the
examination of the medical examiner was improper and prejudiced his defense:
Q. (Prosecutor): If that [strap] was put around your neck, right now,
would that be loose?
A. Um, if it were just strung around my neck?
Q. Correct.
A. It would be loose?
Q. Thank you. In order to cause strangulation, or, or the tourniquet
example that we gave you, would that weapon have to be turned, because
of this, the length of the strap?
A. Yes.
Q. This -- is that an adjustable strap, sir?
A. It does not appear to be. It appears to be knotted at both of its
attachment sites.
Q. Okay. Knotted at both attachment sites?
A. Yes, sir.
Q. Okay.
THE COURT: Um, I have to beg to differ with you. This is an adjustable
strap. Does it not have a buckle on it?
THE WITNESS: There is a buckle. However-THE COURT: Is it just one strap?

25

THE WITNESS: It is one strap.
THE COURT: But isn’t it looped at one end?
Dkt. 5-6, at 40-41.
The Michigan Court of Appeals’ decision rejecting this claim was reasonable:
While the trial court made an inappropriate statement, the trial
court reinforced that it was within the province of the jury to ultimately
decide issues of fact concerning the strap. For example, after the trial
court “publish[ed] the rifle” for the jury, it stated, “Now, if this sling is
adjustable, do not move it right now.” The trial court then signaled to the
jury that it could “do with it what you wish” with the rifle and strap
during deliberations. Most importantly, the fact that the trial court
believed that the strap was adjustable did not obviously contradict
defendant’s testimony that the strap was loose as he left the Cadieux
residence, and, therefore, defendant has failed to establish prejudice from
the comment.
Additionally, the jury was later instructed to disregard any of the
trial court’s comments. The trial court also instructed the jury regarding
its role in determining the facts of the case. Because jurors are presumed
to follow such instructions, Matuszak, 263 Mich. App. at 58, and for the
reasons discussed above, defendant has failed to establish that the
comments constituted plain error affecting substantial rights.
Beltowski, 2012 WL 4800241, at *5.
As noted by the state appellate court, the trial court’s observation that the rifle
strap appeared to be adjustable was favorable to the defense. The prosecutor was
attempting to elicit testimony from the medical examiner that because the strap was
not adjustable–that is, it could not be lengthened–twisting it around an object would
necessarily tighten it like a tourniquet. The trial judge thought the strap appeared to
be adjustable–opening the possibility that it could be lengthened and loosened despite
twisting. The questioning did not prejudice the defense, and the rejection of the claim

26

was reasonable.

2. Jury Request to Review Evidence
Petitioner next asserts the trial court committed error in its response to the
deliberating jury’s request to review testimony. During deliberations the jury sent out
two notes requesting to see the video statement of Jeffrey Moraczewski and a copy of
Petitioner’s testimony. The trial judge allowed the jury to see the video statement of
Moraczewski but denied the jury’s request with respect to Petitioner’s testimony. The
Michigan Court of Appeals found the claim was without merit because preparing the
270-pages of testimony would have caused a significant delay in deliberations, and in
any event, the prosecutor’s thorough cross-examination of Petitioner was more harmful
than beneficial to the defense. Beltowski, 2012 WL 4800241, at *5-6.
This claim fails because it cannot be supported by clearly established Supreme
Court law. There is no federal constitutional law which requires that a jury be provided
with witness testimony. See Bradley v. Birkett, 192 F. App’x. 468, 477 (6th Cir. 2006).
No United States Supreme Court decision requires judges to re-read testimony of
witnesses or to provide transcripts of their testimony to jurors upon their request. See
Friday v. Straub, 175 F. Supp.2d 933, 939 (E.D. Mich. 2001). A habeas petitioner’s
claim that a state trial court violated his right to a fair trial by refusing to grant a jury
request for transcripts is therefore not cognizable in a habeas proceeding. Bradley, 192
F. App’x. at 477; Spalla v. Foltz, 615 F. Supp. 224, 233-34 (E.D. Mich. 1985). The claim
is without merit.
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3. Denial of Motion for Mistrial
Finally, Petitioner asserts the trial court erred in failing to grant Petitioner’s
motion for a mistrial after the prosecutor elicited testimony Petitioner provided Vicodin
to his employees and the victim. He asserts the failure to grant a mistrial indicates the
trial judge was biased against him.
In discussing the related prosecutorial misconduct claim, the Michigan Court of
Appeals found a curative instruction was sufficient to remedy any unfair prejudice
caused by the improper question:
Regarding one of the instances of challenged conduct, the trial court
instructed the jury to disregard questions relating to defendant providing
his work crew Vicodin. That instruction is presumed to have been
sufficient to cure any prejudice. People v. Long, 246 Mich. App. 582, 588
(2001).
Beltowski, 2012 WL 4800241, at *3.
Petitioner fails to cite clearly established Supreme Court law standing for the
proposition that a trial judge’s decision to remedy an improper question by instructing
a jury to disregard the testimony instead of granting a mistrial indicates reversible
bias on the part of the trial judge. Indeed, Petitioner cites no authority at all in support
of his argument the trial court was required to grant a mistrial to maintain
impartiality. See Dkt. 1; Petition, at 41-42.
Petitioner’s third claim is therefore without merit.

E. Newly Discovered Evidence
Petitioner next argues he has newly discovered evidence indicating that the high
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levels of hydrocodone and alprazolam were a significant contributing factor in the
victim’s death. Specifically, he asserts these drugs suppressed the respiration recovery
process that would normally occur after a person loses consciousness. Petitioner
supports this allegation with a report prepared by Randall L. Commissaris, an expert
in pharmacology and toxicology. Dkt 1., Exhibit D and E. Citing authority from the
United States Court of Appeals for the Seventh Circuit, Petitioner asserts the failure
to grant a new trial in the face of compelling newly discovered evidence may violate the
Due Process Clause. Moore v. Casperson, 345 F.3d 474, 491 (7th Cir. 2003), citing
Coogan v. McCarthy, 958 F.2d 793 (7th Cir. 1992).
This claim is without merit because it cannot be supported by clearly established
Supreme Court law. Freestanding claims of actual innocence based on newly
discovered evidence are not cognizable on federal habeas review absent independent
allegations of constitutional error at trial. See Cress v. Palmer, 484 F.3d 844, 854-55
(6th Cir. 2007) (collecting cases). Decisions by the Seventh Circuit are insufficient to
support a claim for federal habeas relief. “Since the Supreme Court has declined to
recognize a freestanding innocence claim in habeas corpus, outside the death-penalty
context . . . . [P]etitioner’s claim is not entitled to relief under available Supreme Court
precedent.” See Wright v. Stegall, 247 F. App’x 709, 711 (6th Cir. 2007).
In any event, Commissaris’ opinion that the victim’s use of drugs suppressed his
ability to start breathing again on his own ignores two key facts. First, Petitioner was
the one who strangled the victim and put him in the position of needing to restart his
own breathing to survive. Under Michigan law, one “takes his victim as he finds [him],”
29

meaning that “any special susceptibility of the victim to the injury at issue” does not
exonerate a defendant. People v. Fluhart, 2016 Mich. App. LEXIS 763, *7 n 1 (2016)
quoting People v. Brown, 197 Mich. App. 448, 451-52 (1992). Second, the evidence
indicated that even without the drugs the victim would not have regained
consciousness because Petitioner left the strap tightly wound around the victim’s neck
preventing any blood flow. This claim does not state a basis for granting habeas relief.

F. Prosecutorial Misconduct
Petitioner’s next claim asserts three allegations of prosecutorial misconduct.
Petitioner claims the prosecutor (1) improperly injected evidence regarding Petitioner
providing drugs to his work crew, (2) vouched for the credibility of its witnesses, and
(3) argued facts not supported by the evidence.
To be entitled to habeas relief on a prosecutorial misconduct claim, the
petitioner must show that the prosecutor’s conduct so infected the trial so as to render
the conviction fundamentally unfair. Parker v. Matthews, 567 U.S. 37 (2012); Gillard
v. Mitchell, 445 F.3d 883, 897 (6th Cir. 2006) (citing Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)). If the misconduct was harmless, then as a matter of law, there
was no due-process violation. See Greer v. Miller, 483 U.S. 756, 765 & n.7 (1987). In
federal habeas, this means asking whether the error “had substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 623, 637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946));
see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007).
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After reciting the controlling constitutional standard, the Michigan Court of
Appeals rejected each of Petitioner’s allegations during his appeal of right. It found the
questions regarding the drug use at Petitioner’s roofing business and the fact he ran
a marijuana grow house did not render his trial unfair because they “were issues
inextricably part of defendant’s and the prosecution’s theories at trial.” Beltowski, 2012
WL 4800241, at *2. The Court also found the trial court’s curative and limiting
instructions cured any potential prejudice. Id. With respect to the vouching claim, the
state court found the projector’s statement that Jeffery Moraczewski had nothing to
lose by lying because he had already lost his brother was a permitted argument based
on the facts of the case. Id., at *2-3. Finally, the state court found the prosecutor
improperly argued facts not in evidence by referring to the fact a state trooper had
recently been killed by a drive high on marijuana. Id. The court, however, found the
comment was not sufficiently prejudicial to deny Petitioner his right to a fair trial. Id.,
at *3.
The state court adjudication of this claim was not objectively unreasonable. As
correctly stated by the state court, the comment of the prosecutor did not suggest any
hidden knowledge that the victim’s brother was testifying truthfully. Johnson v. Bell,
525 F.3d 466, 482 (6th Cir. 2006). Next, the fact Petitioner and the victim operated the
grow house together was a central piece of the factual backdrop of the crime explaining
the reason for the confrontation between the two men. While the same is not true with
respect to the allegation Petitioner provided pain medications to the victim and his
roofing crew, it is difficult to see why this would have necessarily rendered Petitioner’s
31

trial fundamentally unfair given the fact the jury was aware that both the Petitioner
and the victim were engaged in a marijuana manufacturing operation. Finally, the
comment a state trooper had recently been killed by a person high on marijuana was
unnecessary and gratuitous, but it was not objectively unreasonable to find this
isolated remark did not deny Petitioner his right to a fundamentally unfair trial. See
e.g. Joseph v. Coyle, 469 F. 3d 441, 474 (6th Cir. 2006). This claim is without merit.

G. Ineffective Assistance of Trial Counsel
Petitioner next asserts his trial counsel was ineffective for a number of reasons.
First, he asserts his attorney failed to object to the introduction of unsolicited
testimony from a police officer that Petitioner volunteered to turn himself in until an
arrest warrant was issued. He asserts his counsel was ineffective for allowing the
defense private investigator to display the victim’s militia and military books at the
crime scene and then photograph them, allowing the prosecutor to argue they staged
the scene. Petitioner asserts counsel was ineffective for failing to object to the alleged
prosecutorial and trial judge misconduct discussed above. He asserts his attorney
should have hired a toxicology expert as discussed above. And finally, Petitioner
asserts his counsel should have objected to the erroneous self-defense instruction.
Under clearly established Supreme Court law, counsel is ineffective when his
performance falls below an objective standard of reasonableness and thereby prejudices
his client. See Strickland v. Washington, 466 U.S. 668, 687-88, 691-92 (1984). To
satisfy the performance element, a defendant must point to some action “outside the
32

wide range of professionally competent assistance.” Id. at 690. To satisfy the prejudice
element, “[t]he 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.” Id. at 694. In habeas, a reviewing federal court must apply a doubly
deferential standard of review: “[T]he question [under § 2254(d)] is not whether
counsel's actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington v.
Richter, 562 U.S. 86, 105 (2011).
None of Petitioner’s claims merit relief. Petitioner first complains his attorney’s
questioning of the officer in charge resulted in the unsolicited testimony that Petitioner
agreed to turn himself in to police once an arrest warrant was issued:
Q. (Defense Counsel): Officer, in the conversation I had with you, shortly
after the incident, was the contents of the conversation largely, let me
know when the warrant issues, we’ll turn him in?
A. That was part of it.
Q. But you asked me, would he turn himself in beforehand, right?
A. I asked, I was askin’ I needed to talk to him to get his version of the
story. And you said you would -Q. I -- that he would turn himself in when a warrant’s [sic] issued, right?
A. Yes.
Dkt. 5-8, at 187).
This was obviously a case of trial strategy. Defense counsel in this passage was
trying to establish that Petitioner was cooperative with the police investigation, a point

33

made to support his self-defense claim. The fact that the question included the detail
that the turn-over would occur once the warrant issued was a technical one not
germane to the point being made, and it is very likely a fine-point that had no impact
on the jury. If counsel did not elicit the testimony, he would have missed the
opportunity to support his claim that Petitioner cooperated with police. Strickland
cautions reviewing court’s from second-guessing such tactical decisions.
Next, Petitioner asserts his counsel was ineffective for allowing his private
investigator to display the victim’s militia and military books at the crime scene and
then photograph them, suggesting that the victim was a dangerous man. Petitioner
asserts this conduct allowed the prosecutor to argue in closing argument that the
defense team staged the scene. This was another tactical decision insulated by the
Stickland standard. The fact that the victim possessed books about guns and similar
material supported the defense narrative that he was a “crazy” and violent man. This
defense was advanced in part by the private investigator taking photographs of the
materials found at the scene. The fact that in order to take the photographs the
investigator moved the books around merely allowed for a weak and rather
unpersuasive argument that the scene was staged. Counsel was not ineffective for
eliciting the investigator’s testimony.
Petitioner next asserts his counsel was ineffective for failing to object to the
alleged prosecutorial and trial judge misconduct discussed above. But as discussed
above, both of these claims are without merit. Counsel cannot be deemed ineffective
for failing to raise a meritless objection. See Bradley v. Birkett, 192 F. App’x. 468, 475
34

(6th Cir. 2006). Nor is there a reasonable probability the result of the proceedings
would have been different had counsel objected to the alleged errors. The allegations
that might have drawn a sustained objection–the prosecutor’s comment regarding the
slain state trooper and the evidence regarding Petitioner supplying drugs to his work
crew–were not substantial parts of the prosecutor’s case without which there was a
reasonable probability of acquittal.
Petitioner next asserts his attorney should have hired a toxicology expert. But
as discussed above, the proffered report from Dr. Commissariss states only that the
drugs in the victim’s system may have prevented him from regaining normal breathing
after the victim was strangled to the point of passing out. Dkt. 1, Exhibit D. The report
fails to account for the fact that the rifle strap was still tightly constricting the victim’s
neck after he passed-out. The same thing is true for the expert’s opinion that the drugs
may have made the victim more aggressive. Even if that is true, the victim was
certainly no longer aggressive after he lost consciousness and Petitioner continued to
apply pressure for another thirty seconds and then left him helpless with the strap
tightly constricting his neck. That is the critical passage of time that turned a case of
arguable self-defense into murder. Counsel did not perform deficiently by failing to hire
a toxicologist, nor was he prejudiced by the failure to offer the testimony similar to that
contained in the Commissariss report.
Finally, Petitioner asserts his counsel should have objected to the erroneous
self-defense instruction. But again, for the reasons stated above, there is no reasonable
probability that the result of the proceeding would have been different had the
35

standard jury instruction on self-defense been read to the jury. Given the specific
factual scenario involved here–where Petitioner continued to strangle the victim even
after he lost consciousness and then left him with his neck still constricted by the
strap–the evidence did not support a self-defense claim, and there is no reasonable
probability he would have been acquitted on that basis even if the slight errors in the
instructions discussed above had been cured.
Petitioner has failed to demonstrate that he was denied the effective assistance
of trial counsel.

H. Evidentiary Hearing
Finally, Petitioner requests an evidentiary hearing. The request is stated
broadly. He does not state which claims require a hearing or what evidence he wishes
to present. Nevertheless, in Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme
Court held that a federal court’s review of a state court decision is limited to the record
that was before the state court because the federal habeas scheme was designed to
leave “primary responsibility with the state courts.” Id. at 181-82. Consequently, “[i]t
would be contrary to that purpose to allow a petitioner to overcome an adverse
state-court decision with new evidence introduced in a federal habeas court and
reviewed by that court in the first instance effectively de novo.”Id. at 182. Put simply,
“review under § 2254(d)(1) focuses on what a state court knew and did." Id.
Because the Court has determined that Petitioner’s claims are without merit
even considering the evidence proffered to the state courts, he is not entitled to an
36

evidentiary hearing in this Court.
Because all of Petitioner’s claims are without merit, the petition will be denied.

IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability is issued under 28 U.S.C. § 2253. Rule 11 of the
Rules Governing Section 2254 Proceedings, which was amended as of December 1,
2009, requires that a district court must “issue or deny a certificate of appealability
when it enters a final order adverse to the applicant. . . . If the court issues a
certificate, the court must state the specific issue or issues that satisfy the showing
required by 28 U.S.C. § 2253(c)(2).” Rule 11, Rules Governing Section 2254
Proceedings. A certificate of appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Courts must either issue a certificate of appealability indicating which issues satisfy
the required showing or provide reasons why such a certificate should not issue. 28
U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of Appealability, 106 F.3d
1306, 1307 (6th Cir. 1997).
To receive a certificate of appealability, “a petitioner must show that reasonable
jurists could debate whether (or, for that matter, 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.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotes and citations omitted). Here, jurists of reason would not debate
37

the Court’s conclusion Petitioner has not met the standard for a certificate of
appealability with respect to all but one of his claims because they are completely
devoid of merit. The Court finds, however, that jurists of reason could debate whether
Petitioner is entitled to relief on his jury instruction claim. Therefore, the Court grants
a certificate of appealability only with respect to Petitioner’s claim that the trial court’s
erroneous jury instruction on self-defense denied Petitioner a right to fair trial and had
a substantial impact on the verdict.

V. Conclusion
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a writ
of habeas corpus, 2) GRANTS a certificate of appealability with respect to Petitioner’s
jury instruction claim, but 3) DENIES a certificate of appealability with respect to his
other claims.
s/John Corbett O’Meara
United States District Judge
Date: November 14, 2017
I hereby certify that a copy of the foregoing document was served upon the
parties of record on this date, November 14, 2017, using the ECF system and/or
ordinary mail.
s/William Barkholz
Case Manager

38