Jackson v. McCullick
Filing
33
OPINION and ORDER Denying 22 Amended Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying leave to Appeal in forma pauperis. Signed by District Judge Judith E. Levy. (WBar)
Case 5:17-cv-10906-JEL-PTM ECF No. 33, PageID.2066 Filed 05/04/22 Page 1 of 32
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Samuel Leshawn Jackson,
Petitioner, Case No. 17-10906
Judith E. Levy
United States District Judge
v.
Kris Taskila,
Respondent. Mag. Judge Patricia T. Morris
________________________________/
OPINION AND ORDER DENYING (1) THE AMENDED
PETITION FOR A WRIT OF HABEAS CORPUS, (2) A
CERTIFICATE OF APPEALABILITY, AND (3) LEAVE TO
APPEAL IN FORMA PAUPERIS
Before the Court is Samuel Leshawn Jackson’s (“Petitioner”) pro se
amended petition for a writ of habeas corpus under 28 U.S.C. § 2254.
(ECF No. 22.) He challenges his convictions for two counts of assault with
intent to murder, Mich. Comp. Laws § 750.83, three counts of possession
of a firearm during the commission of a felony (felony-firearm), Mich.
Comp. Laws § 750.227b, and one count of carrying a dangerous weapon
with unlawful intent, Mich. Comp. Laws § 750.226. Petitioner was
sentenced to 235 months to forty years for assault with intent to murder,
two years for each of the felony-firearm convictions, and thirty months to
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five years for carrying a dangerous weapon. For the reasons set forth
below, Mr. Jackson’s amended petition for a writ of habeas corpus is
denied.
I.
Background
Petitioner was convicted following a jury trial in the Saginaw
County Circuit Court. The Court quotes the relevant facts that the
Michigan Court of Appeals considered, which are presumed correct on
habeas review under 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581
F.3d 410, 413 (6th Cir. 2009):
The two victims—Marcel Wilson (Wilson) and Richard
Fowler (Fowler)—were driving in Saginaw when they decided
to stop at a gas station. Fowler went into the station, and
surveillance video showed that J’ion Parker (Parker) left the
store shortly thereafter. At the same station, Keondre
Solomon (Solomon) was pumping gas into a white Dodge
Charger. Parker got into the backseat of the Charger, and
defendant was seated in the front passenger seat of the
Charger.
Wilson and Fowler left the gas station and drove down
Williamson Street when they noticed a car speeding up behind
them. Suddenly, the Charger pulled alongside them, and the
occupants began shooting at Wilson and Fowler. Eventually,
both vehicles crashed. Fowler and Wilson were shot and
severely wounded. They required multiple surgeries for the
injuries they sustained in the shooting and crash.
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Parker testified that, after the crash, he, Solomon, and
defendant fled the scene. He also testified that while they
were running, defendant asked what to do with a gun and
then he tossed it to Parker. He then just threw it away from
himself. Parker later identified defendant as the shooter.
A small amount of blood was present above the front
passenger seat of the Charger. DNA testing revealed it
matched defendant’s blood. Further, Solomon’s girlfriend
reported the Charger as stolen, and after searching her house,
the police found a spent .40–caliber cartridge that matched
the casings from the scene and from a gun Solomon turned
over to the police.
A police officer also testified that defendant and Parker
resided on the east side of Saginaw, and there were rivalries
and conflicts between the east side and south side of Saginaw
where the shooting victims resided.
Defendant was convicted of two counts of assault with
intent to murder, three counts of felony-firearm, and carrying
a dangerous weapon with unlawful intent.
People v. Jackson, No. 319398, 2015 WL 3648932, at *1 (Mich. Ct.
App. June 11, 2015) (footnote omitted). The Michigan Supreme
Court denied Petitioner leave to appeal his conviction. People v.
Jackson, 498 Mich. 951 (2015).
On March 21, 2017, Mr. Jackson filed a habeas petition with
this Court. (ECF No. 1.) He included the following claims in his
petition:
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1.
Mr. Jackson is entitled to a writ of habeas corpus where
the lower court[s’] decisions denied his state and federal
constitutional rights to a fair and impartial trial and due
process of law where the trial court erred when it
excluded prospective jurors for cause without first
permitting the defense the opportunity to voir dire;
2.
Mr. Jackson is entitled to a writ of habeas corpus where
the lower co[u]rt[s’] decisions denied his state and
federal constitutional rights to due process of law and a
fair trial guaranteed through the 5th and 14th
Am[endments] where the trial court abused its
discretion [by allowing] prejudicial and irrelevant
evidence to be admitted into the trial proceedings;
3.
Mr. Jackson is entitle[]d to a writ of habeas corpus
where the lower courts[’] decision[s] denied his state and
federal constitutional rights to confrontation and a fair
trial and due process of law guaranteed him through the
5th and 14th Am[endments] when [the] prosecution
committed misconduct by calling a witness to testify
[who] invoked his 5th Amendment rights depriving
defendant of a fair and impartial trial.
(ECF No. 22, PageID.1063; see also Id. at PageID.21.) Because Mr.
Jackson did not exhaust his claims in state court, this Court stayed his
habeas petition. See Jackson v. Lesatz, No. 17-CV-10906, 2019 WL
5578036 (E.D. Mich. Oct. 29, 2019).
4
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On May 20, 2019, while Petitioner’s habeas petition was pending,
he also filed a post-conviction motion for relief from judgment for his
counsel’s failure to object to the sentencing guideline calculation based
on “inaccurate information” and ineffective assistance of appellate
counsel for failing to raise the issue on appeal. (ECF No. 32-18.) This
motion was denied. (ECF No. 32-19 (People v. Jackson, No. 12-38143-FJ3 (Saginaw Co. Cir. Ct., June 17, 2019).)
Petitioner filed a successive motion for relief from judgment with
the state court, which contained the three claims from his initial habeas
petition as well as an additional ineffective assistance of counsel claim.
However, under MCR 6.502(G), a defendant may file “one and only one
motion for relief from judgment” unless the defendant shows that there
is a retroactive change in law or new evidence was discovered entitling
them to relief. Because Mr. Jackson failed to show that he was entitled
to file another motion, the trial court dismissed the successive motion.
(See ECF No. 32-20 (People v. Jackson, No. 12-038143-FJ-3 (Saginaw
County Circuit Court, March 5, 2020))). The Michigan Court of Appeals
affirmed the trial court’s dismissal of the motion (ECF No. 32-21 (People
v. Jackson, No. 354484 (Mich. Ct. App. October 27, 2020))), as did the
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Michigan Supreme Court (See People v. Jackson, 507 Mich. 931 (Mich.
2021) (unpublished table decision)).1
After Mr. Jackson exhausted his state-court appeals, this Court
lifted the stay and permitted him to file an amended habeas petition
(ECF No. 27), which contained an additional ineffective assistance of
counsel claim:
4.
Mr. Jackson is entitled to a writ of habeas corpus where
the lower courts denied his state and federal
constitutional rights to effective assistance of counsel, a
fair and impartial trial, due process of law guaranteed
him through the 5th, 6th, and 14th Amendments when
trial attorney failed to investigate and present available
alibi witnesses.
(ECF No. 22, PageID.1064.)
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:
As discussed in Section III.D, Mr. Jackson argued in his 2019 motion for relief
from judgment that he had ineffective assistance of counsel because of his attorney’s
failure to challenge an error in his sentencing calculation, whereas he argued that he
had ineffective assistance of counsel for his attorney’s failure to investigate and call
alibi witnesses in his 2020 motions for relief from judgment. (Compare ECF No. 3219 with ECF No. 32-20; ECF No. 32-21; People v. Jackson, 507 Mich. at 931.)
1
6
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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’s conclusion is 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
on
a
set
of
materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
An “unreasonable application” occurs when “the state court’s application
of clearly established federal law was objectively unreasonable.” Id. at
409. A federal court reviewing a habeas petition 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
7
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erroneously or incorrectly. Rather, that application must also be
unreasonable.” Id. at 410–11.
“[A] federal court’s collateral review of a state-court decision must
be consistent with the respect due state courts in our federal system.”
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “AEDPA thus imposes a
highly deferential standard for evaluating state-court rulings, and
demands that state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotations and citations
omitted). “[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)). The Supreme Court has emphasized “that even a strong
case for [habeas] relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538
U.S. 63, 75 (2003)).
28 U.S.C. § 2254(d), as amended by AEDPA, preserves federal court
authority to grant habeas relief only “in cases where there is no
8
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possibility fairminded jurists could disagree that the state court’s
decision conflicts with” the Supreme Court’s precedents. Id.
III. Discussion
A.
Claim 1
Petitioner argues that the trial court violated his state and
federal constitutional rights to due process by excluding prospective
jurors with misdemeanor convictions for cause without first
permitting defense counsel to question those jurors individually
regarding any potential bias.
On the first day of trial, the trial court judge indicated that
due to limited space in the courtroom, she preferred to make a
record of those jurors that the prosecutor indicated would be
challenged and excused for cause, rather than bring them into the
courtroom. There were three panels of jurors who were called to
serve. The prosecutor produced a list of the prospective jurors that
would be challenged for cause based on their criminal histories. See
MCR 2.511(D)(10) (“It is grounds for a challenge for cause that the
person: . . . is or has been a party adverse to the challenging party
or attorney in a civil action, or has complained of or has been
9
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accused by that party in a criminal prosecution”). The trial court
judge then reviewed the criminal histories of each of the jurors and
dismissed all jurors previously convicted by the Saginaw County
Prosecutor’s Office (“SCPO”). (See ECF No. 10-10, PageID.306–
311.)
Trial counsel objected to the court’s limited examination of the
jurors with SCPO convictions and stated his belief that the court
rules and statute were “overly broad” and that “there should be an
inquiry as to any reason to exclude anyone.” (Id., PageID.305.) Trial
counsel placed the same objection on the record for all twenty-three
individuals who were examined and then excused for cause because
the SCPO previously convicted them. (See Id. at PageID.305–311);
see also MCR 6.412(D)(2) (“If, after the examination of any juror,
the court finds that a ground for challenging a juror for cause is
present, the court on its own initiative should, or on motion of either
party must, excuse the juror from the panel.”).
The prospective jurors with SCPO convictions were excused
from service based on MCR 2.511(D)(10) and MCR 6.412(D)(1).
Petitioner acknowledges that once a juror falls within the
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parameters of one of the grounds listed in the court rules or statute,
the trial court is without discretion to retain that juror. (ECF No.
22, PageID.1083.) However, he challenges their excusal because the
Michigan Court Rules and statute do not prohibit individuals who
have been convicted of misdemeanors from state-court jury service.
(See ECF No. 22, PageID.1082.)
The Michigan Court of Appeals rejected Petitioner’s claim,
finding that the court individually examined the credentials of each
prospective juror who had been convicted in Saginaw County:
At the beginning of jury selection, the trial court
requested a list of prospective jurors who had been subjected
to prosecution by the Saginaw County Prosecutor’s Office. The
trial court explained that it was going to examine each of the
prospective jurors on the list individually, but without
actually bringing them into the courtroom. The court
indicated that it would consider the prosecutor’s challenge for
cause based on each prospective juror’s criminal record.
However, defense counsel objected, primarily contending that
MCR 2.511(D)(10) was overbroad because it did not provide
for an inquiry into the potential bias of each prospective juror.
Nevertheless, the trial court granted the prosecutor’s request
to dismiss 20 of the potential jurors for cause pursuant to
MCR 2.511(D)(10).
“A prospective juror is subject to challenge for cause on
any ground set forth in MCR 2.511(D) or for any other reason
recognized by law.” MCR 6.412(D)(1). Moreover, cause to
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excuse a prospective juror exists when he or she “has been
accused by [the challenging party] in a criminal prosecution.”
MCR 2.511(D)(10). “If, after the examination of any juror, the
court finds that a ground for challenging a juror for cause is
present, the court on its own initiative should, or on motion of
either party must, excuse the juror from the panel.” MCR
6.412(D) (2).
Defendant does not contest that, pursuant to MCR
6.412(D) and MCR 2.511(D), there was cause to excuse jurors
who had been subjected to prosecution by the Saginaw County
Prosecutor’s Office. Instead, he argues that he should have
been permitted to question the jurors before dismissal.
Defendant highlights the phrase “If, after the examination of
any juror, the court finds” that grounds for cause are present,
the court may dismiss the juror. MCR 6.412(D)(2)(emphasis
added). However, defendant provides no support for the
proposition that the defendant is entitled to examine each
juror. In fact, the language in the court rule only refers to the
trial court excusing the jurors after examination. Further, if
grounds for challenging a juror for cause are present, the
court “must” dismiss the prospective jurors. [People v. Eccles,
260 Mich. App. 379, 383 (2004)].
Moreover, MCR 2.511(D) merely provides that “[a] juror
challenged for cause may be directed to answer questions
pertinent to the inquiry.” (Emphasis added). This language
denotes discretion. In other words, the trial court has
discretion to allow such questioning, but defendant highlights
no language that requires the trial court to permit such
questioning.
Further, even if the prospective jurors were excused
improperly, defendant has not demonstrated prejudice or that
he was denied an impartial jury. “Failure to comply with the
provisions of this chapter shall not . . . affect the validity of a
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jury verdict unless . . . the party demonstrates actual
prejudice to his cause and unless the noncompliance is
substantial.” MCL 600.1354(1). In short, defendant fails to
demonstrate how he was prejudiced in any way from the trial
court’s actions. He is not entitled to relief.
People v. Jackson, 2015 WL 3648932, at *2.
In his habeas claim challenging jury selection, Petitioner fails
to demonstrate an unreasonable application of state law or a
violation of his federal constitutional rights. The record shows that
the trial court dismissed jurors who were previously convicted by
the SCPO because they had previously “been accused by that party
in a criminal prosecution,” an enumerated ground for exclusion
from jury service. See MCR 2.511(D)(10). Therefore, Petitioner’s
assertion that the Michigan rules and statutes do not exclude
people convicted of misdemeanors from jury service is an
inadequate basis for habeas relief. (ECF No. 22, PageID.1082.) “It
is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.” Estelle v. McGuire,
502 U.S. 62, 67–68 (1991). Petitioner has not produced any
Supreme Court precedent to support his position that he had a right
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to examine the disqualified jurors for bias either. Accordingly,
Petitioner is not entitled to habeas relief on his first claim.
B.
Claim 2
Petitioner claims that he was denied his state and federal
constitutional rights to due process when the trial court allowed
prejudicial and irrelevant evidence to be admitted into the trial
proceedings. He argues that the admission of a group photo and a police
officer’s lay opinion testimony that the individuals in the photo were
displaying hand signs associated with gangs on the east and south sides
of Saginaw violated his right to a fair trial. (See ECF 10-15, PageID.654.)
Additionally, he contends that the trial judge erred in permitting the
prosecutor to introduce evidence that J’ion Parker, a trial witness,
whispered to his mother, “I can’t live my life as no snitch, though. I can’t
do it. It would make me want to kill myself if I was a snitch. They gonna
kill me if I snitch.” People v. Jackson, 2015 WL 3648932, at *4. The Court
rejects both claims.
i.
Gang Evidence
The prosecution sought to introduce the photograph to support a
theory that animosity between the neighborhoods on the east and south
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sides of Saginaw motivated the shooting in the case. Defense counsel
opposed admission of the photograph, arguing that it would bring the
issue of gang activity before the jury. (See ECF 10-15, PageID.650.)
The photograph at issue depicts Petitioner, Mr. Parker, and
Davario Lipsey “[m]aking hand gestures that are known to be associated
with different neighborhoods within the City of Saginaw.” (Id. at
PageID.654.) After hearing argument as to the admissibility of the
photograph, the trial court judge ruled that the photograph was
admissible, explaining:
I understand [defense counsel’s] point, but you’ve had the
photos that are being introduced, you’ve had the maps. [The
prosecutor] said from the beginning he thought it was a
neighborhood feud-type issue; south side/east side. So that’s
the reason I’m letting it in, and that is the reason I think it’s
relevant and he’s allowed to bring it in.
(Id. at PageID.653.)
Detective Gerow testified that during his years as a police officer
working in Saginaw, he learned about the animosity between
neighborhoods. Regarding Petitioner’s hand gesture in the photograph,
Detective Gerow testified that:
Q Explain the hand gestures that we’re seeing.
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A Well, again, he’s doing down with the sunny side. Then he’s
got the east side, the E pointing like that, towards the
sunny side.
Q Okay. Pointed so he’s got his left hand down in a
derogatory gesture for sunny side?
A Correct.
Q And his -- with his right hand he’s doing this sign for east
side?
A Yup.
(Id. at PageID.655.) Gerow further testified that the location of the
various homes where the defendants resided would be considered
to be on the east side of Saginaw and that he has encountered
assaultive-type incidents involving individuals from the east side
causing harm to south-siders and vice versa. (See ECF 10-15,
PageID.655.)
The Michigan Court of Appeals rejected Mr. Jackson’s appeal of the
admission of the photograph and the testimony from the police officer
because:
[T]here was no specific testimony about gangs, gang
membership, gang culture, or that defendant acted in
conformity with character traits commonly associated with
gang members. Neither the detective nor any other witness
testified that defendant or any of the involved parties were
members of gangs. Rather, the prosecution’s theory was that
there was general animosity between neighborhoods and
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assaultive-type conduct occurring between the east and south
sides, which was a possible explanation for defendant’s motive
in committing the crime. People v. Unger, 278 Mich. App. 210,
223 (2008) (“Although motive is not an essential element of
the crime, evidence of motive in a prosecution for murder is
always relevant.”). Defendant does not explain why this
evidence was not relevant to show he was a willing participant
in an apparent random act of violence. Further, the trial court
mitigated any unfair prejudice when instructing the jury that
there was no evidence that defendant was involved in these
other assaultive acts. See People v. Graves, 458 Mich. 476, 486
(1998).
Moreover, any error in admitting this evidence was
harmless beyond a reasonable doubt. [People v. Lukity, 460
Mich. 484, 495 (1999).] After seeing the victims at the gas
station, defendant and his two companions initiated a car
chase. Defendant then shot multiple times at the two victims,
seriously wounding them. Parker testified that defendant was
the shooter, and that defendant tossed him the gun when they
were fleeing the scene. DNA evidence definitively placed
defendant in the Charger. In sum, defendant was identified
as the shooter and DNA evidence placed him in the vehicle.
When evaluating “the effect of the error . . . in the
context of the untainted evidence,” we find that it is not “more
probable than not that a different outcome would have
resulted without the error.” Lukity, 460 Mich. at 495.
People v. Jackson, 2015 WL 3648932, at *3–4.
As previously set forth, “it is not the province of a federal habeas
court to reexamine state-court determinations on state-court questions.”
Stewart v. Winn, 967 F.3d 534, 541 (6th Cir. 2020) (quoting McGuire, 502
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U.S. at 67–68). In habeas review of a state law case, a federal court is
limited to deciding whether a state-court conviction violates the
Constitution, laws, or treaties of the United States. McGuire, 502 U.S. at
68. “[E]rrors in the application of state law, especially rulings regarding
the admissibility of evidence, are usually not to be questioned in a federal
habeas corpus proceeding.” Seymour v. Walker, 224 F.3d 542, 552 (6th
Cir. 2000) (quoting Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988)).
Petitioner’s claim that this evidence should have been excluded
under MRE 403 for being more prejudicial than probative does not allege
a violation of the Constitution, laws, or treaties of the United States. “The
Supreme Court has never held (except perhaps within the capital
sentencing context) that a state trial court’s admission of relevant
evidence, no matter how prejudicial, amounted to a violation of due
process.” Blackmon v. Booker, 696 F.3d 536, 551 (6th Cir. 2012)
(emphasis original). Indeed, even the admission of irrelevant and highly
prejudicial evidence cannot form the basis for habeas relief because it
involves a state-law evidentiary issue. See, e.g., Granderson v. Jackson,
No. 1:17-CV-11355, 2020 WL 2112350, at *8 (E.D. Mich. May 4, 2020).
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The Michigan Court of Appeals’ decision that the admission of the
contested trial testimony was not “fundamentally unfair” was also
reasonable. Blackmon, 696 F.3d at 557. The Michigan Court of Appeals
found that the contested trial testimony was relevant to explain why
Petitioner would engage in a violent act against strangers on the south
side of Saginaw. And this Court must defer to the state court’s
determination of state law. See McGuire, 502 U.S. at 67. Assuming that
this evidence could be construed to support a finding that Petitioner was
a gang member, its admission did not render his trial fundamentally
unfair because it was relevant to his criminal motive. See Blackmon, 696
F.3d at 556–57 (no habeas relief where evidence of gang membership was
relevant to witness bias and criminal motive).
ii.
Evidence of Mr. Parker’s Snitch Comment
Petitioner also asserts that the trial judge erred in permitting the
prosecutor to introduce evidence that Mr. Parker whispered to his
mother, “I can’t live my life as no snitch, though. I can’t do it. It would
make me want to kill myself if I was a snitch. They gonna kill me if I
snitch.” People v. Jackson, 2015 WL 3648932, at *4.
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The Michigan Court of Appeals rejected this claim finding that
Petitioner “[p]rovides only cursory treatment of [Mr. Parker’s snitch
comment] with limited citation to supporting authority.” Id. The
Michigan Court of Appeals also quoted the trial court’s limiting
instruction in connection with this testimony:
I’m going to give you a limiting instruction regarding that
testimony, that evidence that you just heard, referring to
Witness Parker’s statements at the police station. That’s been
offered to explain why the witness may have been reluctant
with the police, and there may be an issue of credibility as to
that witness. And so you may consider the evidence as to the
witness credibility.
***
All right. I just wanted to add a cautionary instruction, ladies
and gentleman, also, that there is no evidence of threats of
any kind by either of the defendants here, or of threats or
intimidation of any kind, by them or anybody associated with
them.
So with that, again, it just may go to that witness’s credibility,
but it certainly doesn’t implicate these defendants as having
done or said anything.
Id.
The admission of the “snitch” testimony does not entitle Petitioner
to habeas relief. First, the Michigan Court of Appeals reasonably
concluded that it was relevant and admissible because it explained Mr.
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Parker’s inconsistent statements and thus dealt with his credibility as a
witness. See Bacon v. Klee, No. 15-2491, 2016 WL 7009108, at *3 (6th Cir.
Nov. 30, 2016). Second, Mr. Jackson fails to show that Mr. Parker’s
comment that he himself feared being labeled a snitch unfairly
prejudiced Mr. Jackson because there was no evidence presented that
Mr. Jackson or any of his associates had threatened Mr. Parker. See
United States v. Deitz, 577 F.3d 672, 689 (6th Cir. 2009) (evidence of
witnesses’ previous participation in the witness protection program was
relevant and the prosecutor did not attempt to imply that the defendant
himself was threating witnesses). Third, the trial-court judge specifically
instructed the jury not to construe Mr. Parker’s comment as evidence of
Mr. Jackson’s wrongdoing, and under Michigan law and federal law, the
jury is presumed to have complied with the trial-court’s instructions. See
People v. Graves, 458 Mich. 476, 486 (1998); Shaieb v. Burghuis, 499 F.
App’x 486, 495 (6th Cir. 2012). Accordingly, the admission of this
evidence did not deprive Petitioner of a fair trial.
Petitioner is not entitled to relief on his second claim.
C.
Claim 3
21
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Petitioner next claims he was denied a fair trial because of
prosecutorial misconduct. Specifically, Petitioner claims that the
prosecutor improperly called J’ion Parker as a witness because he knew
in advance that Mr. Parker would invoke his Fifth Amendment rights in
front of the jury.
The Michigan Court of Appeals denied this claim finding no
evidence to support a finding that the prosecution knew or should have
known that Parker would plead the Fifth Amendment:
The prosecution knew that Parker had testified—
without pleading the Fifth Amendment—at three separate
preliminary examinations. While Parker told his mother that
he would not “snitch,” he then provided a statement to the
police. Further, the prosecution’s opening statement revealed
its expectations that Parker would testify. The prosecution
stated that it expected the jury would hear from Parker “one
way or another.” Although the prosecution expected Parker
would be a reluctant witness or might not appear at trial,
there is no indication that it knew Parker would invoke the
Fifth Amendment. In fact, at the September 5, 2012 court
proceeding, the prosecution asked the court to advise Parker
that he was required to appear for trial or else he would be
held in contempt and detained as a material witness.
Further, immediately after Parker pleaded the Fifth,
the trial court excused the jury and asked the prosecutor if he
knew Parker “was going to do this.” The prosecutor
responded, “Absolutely not.” Parker testified that he only told
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the prosecution that he “didn’t remember nothing” and that
he never spoke about the Fifth Amendment privilege.
Because there is no evidence that the prosecutor knew
or even should have known that Parker was going to plead the
Fifth Amendment, we find no error warranting reversal.
[People v. Paasche, 207 Mich. App. 698, 709 (1994)].
People v. Jackson, 2015 WL 3648932, at *5 (internal footnote omitted).
“Claims of prosecutorial misconduct are reviewed deferentially on
habeas review.” Rodriguez v. Jones, 478 F. App’x 271, 275 (6th Cir. 2012)
(quoting Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)). A
prosecutor’s improper comments will be held to violate a criminal
defendant’s constitutional rights only if they “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.”
Millender, 376 F.3d at 527 (quoting McGuire, 502 U.S. at 72). To obtain
habeas relief on a prosecutorial misconduct claim, a habeas petitioner
must show that the state court’s rejection of his prosecutorial misconduct
claim “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Parker v. Matthews, 567 U.S. 37, 48 (2012)
(quoting Harrington, 562 U.S. at 103).
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Prosecutorial misconduct may occur when a prosecutor makes “a
conscious and flagrant attempt to build its case out of inferences arising
from use of the testimonial privileges.” See Namet v. United States, 373
U.S. 179, 186 (1963). Indeed, a witness’ invocation of the Fifth
Amendment privilege can create an “unfavorable inference that the
witness and the defendant engaged in criminal conduct together, or that
the witness has evidence that inculpates the defendant.” Thomas v.
Garraghty, 18 F. App’x 301, 308 (6th Cir. 2001). However, “merely calling
a witness to the stand, even knowing that he will assert Fifth
Amendment rights, does not rise to the level of a constitutional violation.”
Id. at 311 (emphasis in original) (citation omitted). And, the Supreme
Court has expressed reluctance to find that a prosecutor deliberately
sought to gain from “few” assertions of the Fifth Amendment privilege.
Namet, 373 U.S. at 189 (four invocations of the Fifth Amendment did not
show “deliberate attempts by the Government to make capital out of
witnesses’ refusals to testify.”). Likewise, invocation of the Fifth
Amendment privilege is less likely to constitute reversible error where
other evidence supports the inference that the invocation of the privilege
supports. See id.
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The Michigan Court of Appeals denied relief finding that there was
no indication that the prosecution should have known that Parker was
going to invoke his Fifth Amendment privilege. It was not unreasonable
to find that the prosecution did not know that Mr. Parker would invoke
his Fifth Amendment privilege where Parker had already testified at
three separate preliminary examinations without invoking the Fifth
Amendment. Moreover, even if the prosecutor had known that Mr.
Parker would invoke the Fifth Amendment regarding the “snitch”
statement, this assertion of the privilege would not be the only evidence
bolstering the inference of Petitioner’s criminal activity in this case.
Petitioner’s third claim is therefore without merit.
D.
Claim 4
Petitioner argues that trial counsel’s failure to call several alibi
witnesses was ineffective assistance of counsel. Respondent contends
that Petitioner procedurally defaulted on this claim because he raised it
for the first time in a successive post-conviction motion for relief from
judgment and the trial court and the Michigan appellate courts relied on
MCR 6.502(G)—a valid state procedural rule—to reject Petitioner’s postconviction motion.
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When the state courts clearly and expressly rely on a legitimate
state procedural rule to bar a claim, federal habeas review is also barred
unless the petitioner can demonstrate cause for the default and actual
prejudice because of the alleged violation of federal law or demonstrate
that failure to consider the claims will result in a fundamental
miscarriage of justice. Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013)
(citing Coleman v. Thompson, 501 U.S. 722, 750–51 (1991)). If a
petitioner fails to show cause for his procedural default, it is unnecessary
for the court to reach the prejudice issue. See Hargrave-Thomas v.
Yukins, 374 F.3d 383, 389 (6th Cir. 2004) (citing Smith v. Murray, 477
U.S. 527, 533 (1986)). However, in an extraordinary case where a
constitutional error has likely resulted in the conviction of an individual
who is actually innocent, a federal court may consider the constitutional
claims presented even if the petitioner does not show cause for the
procedural default. See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).
MCR 6.502(G)(1) provides that except as outlined in subrule (G)(2)
“one and only one motion for relief from judgment may be filed with
regard to a conviction.” Accord Banks v. Jackson, 149 F. App’x 414, 418
(6th Cir. 2005). MCR 6.502(G)(2) allows a defendant to file a second or
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subsequent motion in two situations: if the motion is based on a
retroactive change in law that occurred after the first motion for relief
from judgment was filed or if evidence discovered after the first such
motion supports the claim. See id. Although “[t]he court may waive the
provisions of [MCR 6.502(G)] if it concludes that there is a significant
possibility that the defendant is innocent of the crime.” MCR 6.502(G)(2).
Michigan
courts
rejected
Petitioner’s
successive
ineffective
assistance of counsel claim for failure to call alibi witnesses under MCR
6.502(G)(2), a valid state procedural rule at the time Petitioner filed his
motion. See Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018)
(rejecting habeas relief for ineffective assistance of counsel claim
procedurally defaulted under MCR 6.502(G)). The state courts rejected
Petitioner’s successive motion for relief from judgment—raising the
ineffective assistance of counsel claim he includes in his amended habeas
petition—under MCR 6.502(G) because he failed to raise a claim based
on a retroactive change in the law or present newly discovered evidence
to the trial court. (See ECF Nos. 32-20, 32-21; People v. Jackson, 507
Mich. at 931.)
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In the amended habeas petition, Mr. Jackson fails to establish good
cause for his procedural default in state court. Indeed, Mr. Jackson does
not address why he failed to raise his ineffective assistance of counsel
claim regarding the failure to call alibi witnesses in his first motion for
relief from judgment. (See ECF No. 22, PageID.1101–1102.)
Petitioner has not established that a fundamental miscarriage of
justice has occurred, either. The miscarriage of justice exception requires
a showing that a constitutional violation probably resulted in the
conviction of a person who is actually innocent. Schlup v. Delo, 513 U.S.
298, 326–27 (1995). “To be credible, [a claim of actual innocence] requires
petitioner to support his allegations of constitutional error with new
reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was
not presented at trial.” Id. at 324.
Petitioner’s claim that several witnesses were willing to provide
him with an alibi for his whereabouts at the time of the shooting is not
credible evidence of his actual innocence. To begin with, the proposed
alibi witnesses’ affidavits fail to provide an actual alibi. Although the
“failure to call alibi witnesses suggests legal insufficiency,” this Court
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“cannot say that this testimony alone would have satisfied the high bar
for demonstrating factual innocence.” See Bell v. Howes, 703 F.3d 848,
855 (6th Cir. 2012). The affidavits from these proposed witnesses fail to
establish the time that Petitioner arrived at the location they say would
have been inconsistent with his presence at the scene of the crime.2 (See
ECF No. 25, PageID.1125–1129.) Therefore, the witnesses’ proposed
testimony does not preclude Petitioner from committing the crime. See
Reeves v. Fortner, 490 F. App’x 766, 769–70 (6th Cir. 2012).
Moreover, courts may consider the persuasiveness of proposed new
evidence to assess claims of actual innocence, and in this case, the
“probable reliability” of the evidence the proposed alibi witnesses would
provide is low. Schlup, 513 U.S. at 332. Here, neither the witnesses nor
Petitioner explain why these individuals waited over six years after
Petitioner’s trial to provide an affidavit in support of an alibi defense.
(See ECF No. 25, PageID.1125–1129.) Moreover, several affidavits
Each of the affiants states that they will establish that on October 28, 2012,
Mr. Jackson “was at a family member[’s] house on 221 S. 2ST Street, Saginaw [,]
Michigan, 48601, throughout the entire night and into the next day.” (ECF No. 25,
PageID.1125–1129.) However, the shooting in this case occurred early in the morning
on October 28, 2012, before the purported alibi witnesses place him at the house at
“221 S. 2ST Street.”
2
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appear to be from family members, and affidavits from family members
that are created after trial are not particularly reliable evidence of actual
innocence. See Milton v. Sec’y, Dep’t Of Corr., 347 F. App’x 528, 531–32
(11th Cir. 2009); accord Stennis v. Place, No. 16-CV-14262, 2018 WL
3390444, at *4 (E.D. Mich. July 12, 2018).
Accordingly, Petitioner is not entitled to relief on his final claim.
IV.
Conclusion
The petition for a writ of habeas corpus is denied with prejudice.
The Court denies a certificate of appealability. To obtain a
certificate of appealability, a prisoner must make a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To
demonstrate this denial, 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.
See 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
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wrong. See Id. at 484. Similarly, when a district court denies a habeas
petition on procedural grounds without reaching the prisoner’s
underlying constitutional claims, a certificate of appealability should
issue, and an appeal of the district court’s order may be taken, if the
petitioner shows that jurists of reason would find it debatable whether
the petitioner states a valid claim of the denial of a constitutional right,
and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling. Id. “The district court must
issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rule 11(a), 28 U.S.C. foll. § 2254; see also
Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
For the reasons set forth in this opinion, the Court denies Petitioner
a certificate of appealability because he fails to make a substantial
showing of the denial of a federal constitutional right. The Court also
denies 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).
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Accordingly, the Court DENIES Mr. Jackson’s petition for a writ of
habeas corpus with prejudice and DENIES a certificate of appealability.
Further, the Court DENIES leave to appeal in forma pauperis.
IT IS SO ORDERED.
Dated: May 4, 2022
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court s
ECF System to their respective email or first-class U.S. mail addresses
disclosed on the Notice of Electronic Filing on May 4, 2022.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
32
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