Watkins v. Trierweiler

Filing 6

OPINION and ORDER DENYING 1 Petition for Writ of Habeas Corpus; Denying Certificate of Appealability; and Granting Permission to Appeal in forma pauperis. Signed by District Judge Judith E. Levy. (WBar)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Jemarcus Watkins,
Petitioner,
v.

Case No. 17-cv-12667
Judith E. Levy
United States District Judge

Tony Trierweiler,
Respondent.

Mag. Judge R. Steven Whalen

________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS [1], DENYING CERTIFICATE OF
APPEALABILITY, AND GRANTING PERMISSION TO APPEAL
IN FORMA PAUPERIS
Petitioner Jemarcus Watkins, a Michigan prisoner, is serving a
term of life imprisonment for conspiracy to commit first-degree murder,
and multiple, lengthy terms of imprisonment for fourteen additional
felony convictions. He seeks habeas corpus relief under 28 U.S.C. § 2254
on the following grounds: the trial court’s evidentiary rulings violated his
right to due process; the prosecutor engaged in misconduct; and defense
counsel was ineffective for failing to move to admit cell phone evidence,

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failing to move to sever his trial from that of his codefendant, and failing
to present an expert in eyewitness identification.
Because the Michigan Court of Appeals’ decision denying these
claims was not contrary to or an unreasonable application of Supreme
Court precedent, the petition for habeas corpus is denied. The Court also
denies a certificate of appealability and grants Watkins leave to proceed
in forma pauperis on appeal.
I.

Background

In 2013, Petitioner was charged in Saginaw County Circuit Court
with conspiracy to commit first-degree murder, Mich. Comp. Laws
§ 750.157a and Mich. Comp. Laws § 750.316(a), first-degree arson, Mich.
Comp. Laws § 750.72, conspiracy to commit first-degree arson, Mich.
Comp. Laws § 750.157a and Mich. Comp. Laws § 750.72, threatening a
witness, Mich. Comp. Laws § 750.122(7)(c), six counts of assault with
intent to commit murder, Mich. Comp. Laws § 750.83, and five counts of
possession of a firearm during the commission of a felony (felonyfirearm), Mich. Comp. Laws § 750.227b.
In summary, Petitioner and his co-defendant Granderson were
charged with setting fire to a house where an individual, Patton, was
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located. Before the fire, Patton intended to testify at a separate murder
trial arising out of a pre-prom party shooting. Although Patton was not
home at the time of the fire, other individuals were present. One of those
individuals, Prince, identified Petitioner as one of the perpetrators of the
fire. Prince testified at Petitioner’s trial that he recognized Petitioner
because they had known each other since middle school.
The Michigan Court of Appeals summarized the evidence presented
at trial as follows:
Jeremy Prince testified that he attended middle school and high
school with Watkins, codefendant John Henry Granderson,[ ]
and Anterio Patton. According to Prince, he attended a pre-prom
party in May 2013. During the party, there was a commotion
involving Patton. Phillip Hudson, a friend of Patton, testified
that Patton and Evillis McGee “had a problem with each other.”
According to Prince, someone fired 12 or 13 shots into the crowd
during the pre-prom party and Ne-Ne McKinley was killed.
Patton’s mother testified that she was present at the pre-prom
party with Patton. According to Patton’s mother, she had just
given Patton a hug when “the crowd went to backing up, and I
seen some guys with some guns.” The men with guns began
shooting. Patton’s sister testified that she was also at the preprom party and saw Watkins, Karon Thomas, and two other men
shoot into the crowd.
Saginaw City Police Detective Matthew Gerow testified that he
investigated the pre-prom shooting. According to Detective
Gerow, McGee and Thomas were charged with murder in
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connection with McKinley’s death. Detective Gerow testified that
Patton testified at McGee and Thomas’s preliminary
examination. Patton’s mother testified that Patton intended to
testify at the murder trial on July 26, 2013.
Patton’s home was attacked early in the morning on July 11,
2013. According to Prince, a friend dropped him off near Patton’s
home to meet his ex-girlfriend, who was at Patton’s house. Prince
saw an unfamiliar van driving in the neighborhood. Patton was
not there at the time, but Patton’s family and some friends were
present. At about 12:30 a.m., a van drove by the house. About
three minutes later, he saw someone approach the house with
something in one hand. Prince yelled, grabbed his ex-girlfriend,
and then heard “the loudest bang I ever heard in my life.” Prince
realized that he, his ex-girlfriend, and the house were on fire.
The people outside began shooting at the house.
Prince extinguished the fire that was on him and then went to
retrieve a gun. When he looked outside, he saw that the front of
the house was on fire and Granderson was shooting an assaultstyle rifle at the house. Prince tried to get everyone into the
house’s basement, but once there, he realized that his exgirlfriend was not present. Prince went back upstairs to find her
and saw someone enter the home carrying a handgun:
He was like right there on the porch, coming into
the door, but I see him, but he’s look around like,
and I see him.... [W]hen we made eye contact, his
eyes got big, because I was shocked about who I
seen.
Prince then testified that the person was Watkins, who ran back
outside. Prince found his ex-girlfriend and went into the
basement to wait for police and firefighters to arrive. Prince
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believed Granderson and Watkins had set the house on fire and
then waited for the occupants to come outside so that they could
“pick [them] off.” The recording of a 9-1-1 call that was placed
from the home’s basement from 1:54 a.m. to 2:03 a.m. was
admitted into evidence.
***
Granderson testified that on the night of the arson, he was at his
sister’s home in the Sheridan Park neighborhood. Granderson’s
alibi defense centered on watching the child of his sister’s friend,
Ja’Quise O’Daniels, while O’Daniels shopped for groceries. On
cross-examination, O’Daniels testified that she was mistaken
about which day it was that Granderson watched her child.
Lauren Davis, the mother of Watkins’s child, testified that at
about 2:25 a.m. on July 11, 2013, Watkins asked her to pick him
up from a home in northwest Sheridan Park. Davis testified that
Watkins did not smell of smoke or gasoline and did not have a
weapon when she picked him up. Davis stated that she did not
know where Watkins was from 1:45 a.m. to 2:00 a.m.
People v. Watkins, No. 320318, 2015 WL 4169204, at *1–2 (Mich. Ct. App.
July 9, 2015).
A jury found Watkins guilty of all charges and, on January 29, 2014,
he was sentenced to: life imprisonment for conspiracy to commit murder,
13 to 40 years for conspiracy to commit arson, 37 years, 5 months to 80
years for arson and for each assault conviction, 9-1/2 to 15 years for
threatening a witness (to be served consecutive to the other, concurrent
sentences), and 2 years imprisonment for each felony-firearm conviction
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(to be served concurrently with one another and consecutive to the other
sentences). People v. Watkins, No. 320318, 2015 WL 4169204, at *1 (Mich.
Ct. App. July 9, 2015).
Watkins filed an appeal of right in the Michigan Court of Appeals
claiming that: the prosecutor improperly shifted the burden of proof; the
trial court improperly admitted witness Jeremy Prince’s prior consistent
statements; he was denied the right to effective assistance of counsel; the
trial court erred in denying Watkins’ motion for new trial based upon
newly-discovered evidence; the trial court erred in admitting gangrelated photographs; the cumulative effect of these errors denied
Watkins the right to a fair trial; and the trial court incorrectly scored
offense variables 5, 10, and 20. Id. The Michigan Court of Appeals
affirmed Watkins’ convictions and sentences. Id. at *11. The Michigan
Supreme Court denied leave to appeal. People v. Watkins, 499 Mich. 935
(Mich. May 25, 2016).
Watkins then filed this habeas corpus petition. (ECF No. 1.) He
raises these claims: (1) his right to due process was violated when the
trial court admitted the prior consistent statement of Jeremey Prince and
gang-related photographs; (2) the prosecutor committed misconduct by
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shifting the burden of proof during closing argument; and (3) trial counsel
was ineffective for failing to admit cell phone evidence, failing to move to
sever Watkins’ trial from co-defendant Granderson’s, and failing to
present an expert in eyewitness identification.
II. Legal Standard
A § 2254 habeas petition is governed by the heightened standard of
review set forth in the Anti-Terrorism and Effective Death Penalty Act
(AEDPA). 28 U.S.C. § 2254. To obtain relief, habeas petitioners who raise
claims previously adjudicated by state courts must “show that the
relevant state-court ‘decision’ (1) ‘was contrary to, or involved an
unreasonable application of, clearly established Federal law,’ or (2) ‘was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.’” Wilson v. Sellers, 138
S. Ct. 1188, 1191 (2018) (quoting 28 U.S.C. § 2254(d)). The focus of this
standard “is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007). “AEDPA thus imposes a highly deferential
standard for evaluating state-court rulings and demands that state-court
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decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766,
773 (2010) (internal citations and quotation marks omitted). Ultimately,
“[a] state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.
86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). Additionally, a state court’s factual determinations are presumed
correct on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is
“limited to the record that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
III. Discussion
A.

Admission of Evidence

Watkins raises two claims related to the admission of evidence. He
argues that the trial court violated his right to due process by admitting
testimony concerning Jeremy Prince’s prior consistent statement and
admitting gang-related photographs.
Respondent argues that these claims are unexhausted because
Petitioner failed to present them as federal constitutional claims and that
they are procedurally defaulted because defense counsel failed to object

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and invited the error. The exhaustion requirement is not jurisdictional,
and the Court may decide an unexhausted claim where, as here, the
unexhausted claim is lacks merit. See Granberry v. Greer, 481 U.S. 129,
131, 134-35 (1987). Further, judicial economy is best served if the Court
bypasses the procedural default question and proceeds directly to the
merits of these claims. Lambrix v. Singletary, 520 U.S. 518, 525 (1997)
(“Judicial economy might counsel [addressing the merits of a claim] if it
were easily resolvable against the habeas petitioner, whereas the
procedural-bar issue involved complicated issues of state law.”).
First, Watkins challenges the admission of police detective Charles
Coleman’s testimony recounting his interview with Prince at the hospital
approximately 45 minutes after the shooting. Watkins argues that the
testimony improperly bolstered Prince’s credibility.
The Michigan Court of Appeals denied this claim:
We note that counsel for Granderson challenged Detective
Coleman’s testimony. Counsel for Watkins did not challenge the
testimony. In his opening statement, counsel for Granderson had
previously stated the following:
Mr. Prince has been interviewed a number of times
and he said a number of different things. At one
point he told the investigator he was 70 percent
sure ... that the two people shooting at the house,
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and again earlier he had said there were three, 70
percent sure it was John Granderson and Mr.
Watkins.
There have been other hearings in this case, you
know. There was a preliminary exam before we got
to that point, and at that point he’s saying he was
100 percent sure, but back when Mr. Prince was
being treated at Covenant Hospital, so this would
have been the night of the shooting, July 11th, he
told Detective Coleman that [Watkins] was the one
doing the shooting and he did not know who threw
the cocktail.
As part of his interview with Detective Coleman,
he related that he had been shot a year ago in
Buena Vista and believed he’d been shot by the
same people who shot up the house this particular
night.
Detective Coleman subsequently testified that he was the first
officer to interview Prince in the hospital. According to Detective
Coleman, Prince told him that Watkins and Granderson got out
of a van, Watkins was shooting, and he did not know who threw
the Molotov cocktail. On cross-examination, Detective Coleman
testified that Prince told him that the arson incident was the
second time that Watkins and Granderson had shot him.
We conclude that by stating in his opening that Detective
Coleman would testify about Prince’s prior statements, counsel
waived this alleged error. Prior to his objection, counsel
indicated in his opening statement that the jury would hear
Prince’s prior statements to police officers. The prosecution
clearly relied on this statement while questioning Detective
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Coleman. Watkins’s attempt to characterize the prosecution’s
questioning as “bolstering” on appeal is disingenuous.
People v. Watkins, No. 320318, 2015 WL 4169204, at *4–5 (Mich. Ct. App.
July 9, 2015).
The Michigan Court of Appeals correctly stated at the beginning of
its analysis that co-defendant Granderson’s attorney referenced Prince’s
prior statement in his opening statement. But by the end of its analysis
the court of appeals mistakenly determined that Watkins waived this
claim because his attorney referenced Prince’s statement in opening. In
fact, Watkins’ attorney did not give an opening statement – he reserved
his opening at the beginning of the trial and, at the start of the defense’s
case, entirely waived an opening statement. (ECF No. 4-5, PageID.234;
ECF No. 4-9, PageID.631.) Where, as here, a state-court decision is based
upon an unreasonable determination of the facts, the Court reviews the
claim de novo. Walter v. Kelly, 653 F. App’x 378, 391 (6th Cir. 2016). Even
under a de novo standard of review, the Court denies relief.
Habeas relief is seldom available for a state court’s erroneous
evidentiary ruling because habeas relief “does not lie for errors of state
law.” See Estelle v. McGuire, 502 U.S. 62, 67 (1991). An evidentiary ruling
may violate the Due Process Clause (and thereby provide a basis for
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habeas relief) where the ruling “is so extremely unfair that its admission
violates ‘fundamental conceptions of justice.’” Dowling v. United States,
493 U.S. 342, 352 (1990) (quoting United States v. Lovasco, 431 U.S. 783,
790 (1977)); Bugh v. Mitchell, 329 F.3d 496, 512 (2003). The Supreme
Court “defined the category of infractions that violate fundamental
fairness very narrowly.” Estelle, 502 U.S. at 73 (1991). To violate due
process, an evidentiary decision must “offend[ ] some principle of justice
so rooted in the traditions and conscience of our people as to be ranked
as fundamental.” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000)
(citation omitted).
The Court finds that admission of this testimony did not violate due
process. First, Prince testified at trial. “[W]hen the declarant appears for
cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.”
Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004). The Confrontation
Clause “does not bar admission of a statement so long as the declarant is
present at trial to defend or explain it.” Id.
Second, even if the admission of the prior consistent statement
violated state evidentiary rules, habeas relief is not warranted. On
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habeas review, “a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” Estelle,
502 U.S. at 68 (citing § 2241). There is no Supreme Court decision holding
that improper use of a witness’s prior consistent statements violates the
Constitution. See Wilson v. Sheldon, 874 F.3d 470, 477 (6th Cir. 2017).
Finally, this testimony was so limited in nature it does not come
close to implicating Watkins’ right to due process. Therefore, admission
of the prior statement did not deprive Watkins of a fundamentally fair
trial.
Watkins’ second evidentiary claim concerns the admission of gangrelated photographs. He argues that the admission of “hundreds” of gangrelated photographs depicting Watkins and his co-defendant flashing
gang signs and holding weapons violated his right to due process.1 (ECF
No. 1-1, PageID.20.)

Watkins’ reference to hundreds of gang-related photographs is overstated.
The trial court admitted approximately 130 photographs as exhibits, but many were
related to the scene of the fire and Prince’s injuries. Of those photographs depicting
gang-related content, many related only to co-defendant Granderson.
1

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The Michigan Court of Appeals held that the photographs were
properly admitted under state rules of evidence. Watkins, 2015 WL
4169204 at *3. The state court held:
[T]he photographs established Watkins’s relationship to people
who were going to be standing trial for murder two weeks after
the offense. The intended victim of the arson was a person who
intended to testify at that trial. The photographs therefore
established the motive for the crime and were thus highly
relevant. The gang-related hand symbols that some people in the
photographs displayed also established their relationship. There
is also no indication that the jury gave this evidence undue or
preemptive weight. We conclude that the trial court did not
abuse its discretion by admitting the photographs.
Id.
The court of appeals’ decision was not contrary to, or an
unreasonable application of, Supreme Court precedent. Admission of the
gang-related photographs did not render Watkins’ trial fundamentally
unfair because such evidence was relevant to motive. “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) (no habeas relief where evidence of gang membership relevant
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to witness bias and criminal motive). Here, the connections among the
defendants and others depicted in the photographs related to motive. As
such, their admission did not render Watkins’ trial fundamentally unfair.
B.

Prosecutorial Misconduct

Next, Watkins argues that the prosecutor denied him a fair trial by
improperly shifting the burden of proof during closing argument.2 The
prosecutor argued:
[Watkins’] girlfriend Lauren said ... it’s like early in the morning,
2:24, 2:25, ... and I get a call from [Watkins] and he’s someplace
where I don’t even know where he’s at....
He wasn’t at home. He was at some stranger’s house apparently.
What’s he doing at some stranger’s house, and why does he need
a ride at almost 2:30 in the morning.... Lauren, to her credit,
well, you don’t know where he was at the time when all this
happened, do you? Can’t tell you. Does not have an alibi.
Watkins, 2015 WL 4169204, at *6.
Because defense counsel failed to lodge a contemporaneous
objection during trial, the Michigan Court of Appeals reviewed this
prosecutorial misconduct claim under a plain-error standard. Id.
AEDPA’s deferential standard of review applies to a state court’s plainRespondent argues that this claim is procedurally defaulted. The Court finds
it more efficient to proceed directly to the merits of the claim. See Hudson v. Jones,
351 F.3d 212, 215 (6th Cir. 2003).
2

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error analysis of a defaulted claim. Stewart v. Trierweiler, 867 F.3d 633,
638 (6th Cir. 2017).
Under Darden v. Wainwright, 477 U.S. 168 (1986), a prosecutor’s
improper comments violate a criminal defendant’s constitutional rights
if they “‘so infect[ ] the trial with unfairness as to make the resulting
conviction a denial of due process.’” Id. at 181 (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct
entails much more than conduct that is “undesirable or even universally
condemned.” Id. at 181 (internal quotation omitted). To constitute a due
process violation, the conduct must have been “so egregious so as to
render the entire trial fundamentally unfair.” Byrd v. Collins, 209 F.3d
486, 529 (6th Cir. 2000) (citations omitted).
The Darden standard “is a very general one, leaving courts ‘more
leeway ... in reaching outcomes in case-by-case determinations.’” Parker
v. Matthews, 567 U.S. 37, 48 (2012) (alteration in original) (quotation
omitted). “That leeway increases in assessing a state court’s ruling under
AEDPA,” as this court “‘cannot set aside a state court’s conclusion on a
federal prosecutorial-misconduct claim unless a petitioner cites ... other
Supreme Court precedent that shows the state court’s determination in
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a particular factual context was unreasonable.’” Stewart v. Trierweiler,
867 F.3d 633, 638-39 (6th Cir. 2017) (quoting Trimble v. Bobby, 804 F.3d
767, 783 (6th Cir. 2015)).
The Michigan Court of Appeals held that the prosecutor’s comment
on Watkins’ failure to present an alibi was improper because Watkins did
not present an alibi defense. Watkins, 2015 WL 4169204 at *6. But the
court of appeals held that the error did not warrant reversal because it
was harmless:
[T]he prosecution’s remark was brief. Read in context, it was a
part of the prosecutor's general commentary on the weakness of
Davis’s evidence that Watkins was somewhere other than
Patton’s house during the arson. Most importantly, a timely
curative instruction would have alleviated the prejudicial effect
of this remark, and the trial court later instructed the jury that
the burden of proof rested on the prosecution and that Watkins
was not required to prove his innocence. We conclude that this
error does not warrant reversal because it is not likely that it
prejudiced Watkins’s trial.
Id.
The Court applies AEDPA’s deferential standard of review to a
state court’s harmless error analysis and, under this standard, habeas
relief is not warranted. See Davis v. Ayala, 576 U.S. 257, 268-99 (2015).

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The trial court correctly instructed the jury that the prosecutor had
the burden of proving Watkins’ guilt beyond a reasonable doubt and the
comment was isolated. (ECF No. 4-1, PageID.735.) Under these
circumstances, it was not unreasonable for the Michigan Court of
Appeals to conclude that any possible prejudice that may have resulted
from the prosecutor’s single, isolated statement was cured by the trial
court’s instructions. See Scott v. Elo, 302 F.3d 598, 603-04 (6th Cir. 2002)
(denying habeas relief and concluding that even if prosecutor committed
misconduct during closing argument, it was not an error that “jury
instructions could not cure.”). Relief is denied on this claim.
C.

Ineffective Assistance of Counsel

In his final claim, Watkins argues that defense counsel was
ineffective in the following ways: (1) counsel failed to move to present
evidence of Watkins’ cell phone records for June 11, 2013; (2) counsel
failed to move to sever his trial from co-defendant Granderson’s; and (3)
counsel failed to present an expert witness in eyewitness identification.
A violation of the Sixth Amendment right to effective assistance of
counsel is established where an attorney’s performance was deficient and
the deficient performance prejudiced the defense. Strickland v.
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Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is
deficient if “counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. To establish that an attorney’s deficient
performance prejudiced the defense, the petitioner must show “a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. Unless the petitioner demonstrates both deficient
performance and prejudice, “it cannot be said that the conviction [or
sentence] resulted from a breakdown in the adversary process that
renders the result unreliable.” Id. at 687.
The standard for obtaining habeas corpus relief is “‘difficult to
meet.’” White v. Woodall, 572 U.S. 415, 419 (2014), quoting Metrish v.
Lancaster, 569 U.S. 351, 358 (2013). In the context of an ineffective
assistance of counsel claim under Strickland, the standard is “all the
more difficult” because “[t]he standards created by Strickland and §
2254(d) are both highly deferential and when the two apply in tandem,
review is doubly so.” Harrington, 562 U.S. at 105 (internal citations and
quotation marks omitted). “[T]he question is not whether counsel’s
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actions were reasonable”; but whether “there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Id.
1. Cell phone records
Watkins argues that defense counsel should have admitted a police
report showing that “Watkins’ cell phone could not be placed at the scene
at the time of the incident.” (ECF No. 1-1, PageID.26.) The police report
stated:
Due to the lack of calls nearer to the time of the incident, there
is no definitive cellular phone call evidence to place the handset
at or away from the scene of the crime. Analysis of other date
transmissions records does not place the phone at the scene of
the crime.
(ECF No. 4-15, PageID.896.) 3
The Michigan Court of Appeals held that defense counsel was not
ineffective for failing to present this evidence because it was not
exculpatory: “[A]t best, the witness could have testified that he could not
tell from the cell phone records where Watkins was located during the
crime.” Watkins, 2015 WL 4169204 at *7. The state court’s decision was

A copy of the police report has not been filed with this Court. Watkins quoted
the relevant portion of the police report in his brief filed in the Michigan Court of
Appeals. The content of the police report is not disputed so the Court relies on the
quoted portion found in Watkins’ state court brief.
3

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not contrary to, or an unreasonable application of, Strickland. Counsel’s
decision not to present this evidence was reasonable given that it would
not have yielded any measurable benefit to the defense.
2. Separate trials
Watkins next argues that his attorney was ineffective in failing to
move to sever his trial from that of his co-defendant. The Michigan Court
of Appeals held that counsel’s decision not to move for separate trials was
not an unreasonable trial strategy and did not prejudice Watkins. The
state court reasoned:
Watkins and Granderson did not present mutually antagonistic
defenses: Watkins's theory was that he was misidentified as
being present, and Granderson's theory was that he was not
present. A full reading of Granderson's opening statement
indicates that he did not inculpate Watkins. Instead, he
accurately summarized the expected testimony in the case.
Neither defense implicated the other defendant.
Watkins contends that Granderson's failed alibi defense may
have prejudiced the jurors against his case because Granderson
blatantly lied to the jury. Granderson's alibi witness testified
that she was mistaken, not that the alibi was fabricated.
Watkins also contends that the jury was prejudicially exposed to
gang-related photographs involving Granderson that would
otherwise have been inadmissible. Watkins does not address
how the photographs of Granderson with East Side gang
members were more prejudicial to his case than the photographs
of Watkins with similar associates, which were properly
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admitted. “[I]ncidental spillover prejudice, which is almost
inevitable in a multi-defendant trial, does not suffice.” [People v.
Hana, 447 Mich. 325, 349 (1994)] (internal quotation marks and
citations omitted). We are not convinced that the jury gave
undue or preemptive weight to the photographs involving
Granderson alone, rather than those involving Watkins.
Watkins, 2015 WL 4169204 at *7-8.
The state court’s decision is consistent with controlling federal law.
On habeas review of an improper joinder claim, the Court must ask
whether the failure to sever the trials impinged on the petitioner’s right
to due process of law. Davis v. Coyle, 475 F.3d 761, 777 (6th Cir. 2007).
To prove a due process violation, Watkins must show that the joint trial
“’result[ed] in prejudice so great as to deny [Watkins his] . . . right to a
fair trial.’” Id. (quoting United States v. Lane, 474 U.S. 438, 446 n. 8
(1986)).
Generally, severance is granted “‘only if there is a serious risk that
a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about
guilt or innocence.’” Stanford v. Parker, 266 F.3d 442, 458-59 (6th Cir.
2001) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)). A
separate trial is not required simply because defendants present

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antagonistic defenses. Id. at 458. “A defendant seeking severance must
show substantial, undue, or compelling prejudice to a specific trial right.”
Lang v. Gundy, 399 Fed. App’x 969, 976 (6th Cir. 2010). “To find prejudice
sufficient to require habeas corpus relief where it is not claimed that a
joint trial resulted in the deprivation of a specific constitutional
guarantee such as the right to call witnesses ... or the right to
confrontation ..., [the court] must determine from the entire record that
the fundamental right to a fair trial as secured by the Fourteenth
Amendment has been abridged.” Jenkins v. Bordenkircher, 611 F.2d 162,
168 (6th Cir. 1979). This is a “very heavy burden.” Stanford, 266 F.3d at
459.
Watkins fails to satisfy this burden. The Michigan Court of Appeals
found no evidence which would merit severance making it unlikely that
a motion for severance would have succeeded. Counsel is not required to
raise meritless arguments. Ludwig v. United States, 162 F.3d 456, 459
(6th Cir. 1998). And Watkins has failed to rebut the presumption that
counsel’s decision was a matter of trial strategy. Federal habeas courts
do not second-guess judgments of that sort. See Strickland, 466 U.S. at
689 (cautioning that “a court must indulge a strong presumption that
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counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be considered
sound trial strategy’ ”) (citation omitted). The state court’s determination
that failing to move for a severance did not constitute ineffective
assistance of counsel was therefore not an unreasonable application of
federal law.
3. Expert witness
Finally, Watkins argues that counsel was ineffective in failing to
present an expert witness in eyewitness identification.
The Michigan Court of Appeals denied this claim:
[W]hat evidence to present is a matter of trial strategy. [People
v. Horn, 279 Mich. App. 31, 39 (2008)]. Trial counsel may
reasonably decide against presenting an expert witness in
identification because counsel “may reasonably have been
concerned that the jury would react negatively to perhaps
lengthy expert testimony that it may have regarded as only
stating the obvious: memories and perceptions are sometimes
inaccurate.” People v. Cooper, 236 Mich. App 643, 658; 601 NW2d
409 (1999).
We conclude that trial counsel did not render ineffective
assistance when he did not present an eyewitness identification
expert. This case involved only one eyewitness-Prince, who
claimed that he saw Watkins while he attempted to retrieve his
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girlfriend. Prince was familiar with Watkins, and they had an
extensive personal history. Trial counsel ably attacked Prince’s
testimony both by cross-examination and the presentation of
other witnesses, including through Davis’s testimony that Prince
never went back upstairs but instead remained in the basement.
Considering the abundant impeachment evidence available,
counsel’s strategic decision to forego an eyewitness identification
expert was reasonable. Further, we are not convinced that the
results of Watkins’s proceeding would have been different had
such an expert testified.
Watkins, 2015 WL 4169204, at *8.
The Michigan Court of Appeals’ decision was not contrary to, or an
unreasonable application of, clearly established Supreme Court
precedent. The Supreme Court has recognized that eyewitness
identification carries certain dangers such as unreliable memory or
perception. United States v. Wade, 388 U.S. 218, 235 (1967). And the
Sixth Circuit has acknowledged that expert testimony on eyewitness
identification is “‘universally recognized as scientifically valid and of aid
to the trier of fact.” Jackson v. Bradshaw, 681 F.3d 753, 762 (6th Cir.
2012) (quoting Ferensic v. Birkett, 501 F.3d 469, 482 (6th Cir. 2007)). Yet
“[t]he selection of an expert witness is a paradigmatic example of the type
of ‘strategic choic[e]’ that, when made ‘after thorough investigation of
[the] law and facts,’ is ‘virtually unchallengeable.’” Hinton v. Alabama,
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571 U.S. 263, 275 (2014) (quoting Strickland, 466 U.S. at 690). In
Jackson, the Sixth Circuit held that a trial attorney’s decision not to
present expert testimony on eyewitness identification was not
unreasonable

where

potential

weaknesses

in

the

eyewitnesses’

identification were demonstrated through cross-examination and closing
arguments. Jackson, 681 F.3d at 762-63. “[N]o precedent establishes that
defense counsel must call an expert witness about the problems with
eyewitness testimony in identification cases or risk falling below the
minimum requirements of the Sixth Amendment.” Perkins v. McKee, 411
F. App’x 822, 833 (6th Cir. 2011).
In this case, defense counsel challenged eyewitness testimony
through cross-examination. An expert was not needed to explain to the
jury that conditions such as smoke and fire may make it harder to see
and, consequently, potentially render an identification less reliable.
Further, Watkins presents no evidence that he has an expert witness who
would have been willing to testify regarding eyewitness identification. A
habeas petitioner’s claim that trial counsel was ineffective for failing to
call an expert witness cannot be based on speculation. Clark v. Waller,
490 F.3d 551, 557 (6th Cir. 2007). In the absence of such proof, Watkins
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is unable to establish that he was prejudiced by counsel’s failure to call
an expert witness to testify at trial. Id. at 557 (6th Cir. 2007) (rejecting
petitioner’s ineffective-assistance claim arising from counsel’s failure to
call a particular witness because the petitioner “offered no evidence,
beyond his assertions, to prove what the content of [the witness’s]
testimony would have been”).
Applying AEDPA’s doubly deferential standard of review, it was not
unreasonable for the Michigan Court of Appeals to conclude that
counsel’s decision to rely on cross-examination rather than retaining an
expert was within the wide range of reasonable defense strategies and
that Watkins was not prejudiced by defense counsel’s decision. The Court
denies relief.
V.

Certificate of Appealability

“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254
has no automatic right to appeal a district court’s denial or dismissal of
the petition. Instead, [the] petitioner must first seek and obtain a
[certificate of appealability.]” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). A certificate of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28
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U.S.C. § 2253(c)(2). 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, 537 U.S. at 336 (2003)
(internal quotes and citations omitted).
Reasonable jurists would not find the Court’s assessment of
Watkins’ claims to be debatable or wrong. The Court therefore declines
to issue a certificate of appealability.
The Court grants Watkins leave to appeal in forma pauperis
because an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3);
Fed. R. App. P. 24(a)(3)(A).

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VI.

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Conclusion

For the reasons set forth above, IT IS ORDERED that the petition
for a writ of habeas corpus and a certificate of appealability are DENIED
and the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Petitioner may proceed on
appeal in forma pauperis.
IT IS SO ORDERED.
Dated: July 20, 2020
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 July 20, 2020.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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