Dykes v. Haas

Filing 22

OPINION AND ORDER Denying 1 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-13617-JEL-APP ECF No. 22, PageID.1462 Filed 01/27/21 Page 1 of 25

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Cavasseaire Dykes,
Petitioner,
v.

Case No. 17-cv-13617
Judith E. Levy
United States District Judge

Randall Haas,
Respondent.
________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS [1], DENYING A CERTIFICATE OF
APPEALABILITY AND DENYING LEAVE TO APPEAL IN
FORMA PAUPERIS
Cavasseaire Dykes, (“Petitioner”), confined at the Gus Harrison
Correctional Facility in Adrian, Michigan, filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his
conviction for unlawful imprisonment, Mich. Comp. Laws § 750.349b,
first-degree home invasion, Mich. Comp. Laws § 750.110a(2), possession
of a firearm by a felon, Mich. Comp. Laws § 750.224f, felonious assault,
Mich. Comp. Laws § 750.82, possession of a firearm during the
commission of a felony (felony-firearm), Mich. Comp. Laws § 750.227b,

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1463 Filed 01/27/21 Page 2 of 25

domestic violence, Mich. Comp. Laws § 750.81(2), and being a second
felony habitual offender, Mich. Comp. Laws § 769.10. For the reasons set
forth below, the petition for a writ of habeas corpus is denied with
prejudice.
I. Background
Petitioner was convicted following a jury trial in the Genesee
County Circuit Court. This Court recites verbatim the relevant facts
regarding Petitioner’s conviction from the Michigan Court of Appeals’
opinion affirming his conviction, which are presumed correct on habeas
review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d
410, 413 (6th Cir. 2009):
The complainant and defendant began dating in 2011.
According to the complainant, she ended the relationship at
some point toward the end of May 2013 after several incidents
in which defendant had become physically violent toward her.
On June 1, 2013, she was home alone when she heard
defendant yelling and knocking on the back door of her house.
The complainant testified that he sounded angry, so she
yelled through the door that he needed to calm down and
leave, and that she would talk to him later. Instead, defendant
broke a window frame near her back door and entered her
house. She ran out the front door. Defendant chased her,
grabbed her by the hair, and dragged her back into the house,
where he hit her with a gun, and kicked and punched her. He
2

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1464 Filed 01/27/21 Page 3 of 25

also held her at gunpoint and told her that the only way she
would leave the house was in a “body bag.”
Two responding police officers testified that as they
approached the house, they could hear two people yelling;
however, when they knocked on the door, the voices stopped.
After they knocked for several minutes, they announced that
they would kick the door in, and the complainant then came
to the door with scratches, marks and bruises on her face and
body. The officers testified that she was initially evasive in
response to their questions as to the whereabouts of the
person who had assaulted her, but she eventually told them
that defendant was hiding in a bedroom underneath a bed.
She also told them that defendant had hidden the gun
between her mattress and box spring. The officers then
located defendant and the gun in the designated locations.
People v. Dykes, No. 323944, 2016 WL 716789, at *1 (Mich. Ct. App. Feb.
23, 2016).
Petitioner’s conviction was affirmed. Id., lv. den. 500 Mich. 856, 883
N.W.2d 766 (2016).
Petitioner seeks a writ of habeas corpus on the following grounds:1
A.

1

Trial counsel was ineffective for failing to discover and
utilize the complainant’s prior convictions of dishonesty
and her similar allegations of abuse against her child’s
father.

See ECF 1, PageID.6, 8, 10, 11, 13 and 15.

3

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1465 Filed 01/27/21 Page 4 of 25

B.

Trial counsel was ineffective for failing to interview and
call favorable witnesses who could have contradicted the
key witness testimony and verified the petitioner’s
residency at the home in question.

C.

Petitioner was denied his Sixth Amendment right under
the US Constitution to the effective assistance of counsel
and a fair trial because counsel failed to object and move
for a mistral when the prosecutor elicited irrelevant and
unfair prejudicial similar acts evidence.

D.

The prosecutor elicited testimony from the complainant
that petitioner had broke[n] a flat screen T.V. over the
complainant’s head, stomped on her head which caused
her to lose a baby. Petitioner argues that this testimony
of other bad acts was inadmissible under MRE 404(b)(1)
and that it was improperly admitted as evidence of his
propensity to commit acts of domestic violence in
violation of US Const Ams V, XIV.

E.

Petitioner contends that he is entitled to a writ of habeas
corpus because he discovered that the complainant had
prior convictions involving dishonesty, therefore the
prosecution committed a Brady violation in failing to
honor a specific request for the complainant’s criminal
record.

F.

Petitioner’s federal constitutional rights were violated
under US Const Ams V & XIV, Const 1963 Art 1, §17 as
to first-degree home invasion, because the trial judge
erroneously scored 15 points for offense variable 8 for
facts that did not pertain to the sentencing offense and
25 points for offense variable 13 absent proof of a
continuing pattern of felonious criminal activity.
4

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1466 Filed 01/27/21 Page 5 of 25

(ECF No. 1, PageID.6, 8, 10, 11, 15.)
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, which imposes the following standard of
review:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim–
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of,
clearly established Federal law, as
determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts
in light of the evidence presented in the State
court proceeding.
A decision of a state court is “contrary to” clearly established federal
law if the state court arrives at a conclusion opposite to that reached by
the Supreme Court on a question of law or if the state court decides a
case differently than the Supreme Court has on a set of materially
5

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1467 Filed 01/27/21 Page 6 of 25

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a
prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ
simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law
erroneously

or

incorrectly.”

Id.

at

410–11.

“[A]

state

court’s

determination that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to
obtain habeas relief in federal court, a state prisoner is required to show
that the state court’s rejection of his claim “was so lacking in justification
that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Id. at 103. A
habeas petitioner should be denied relief as long as it is within the “realm
of possibility” that fairminded jurists could find the state court decision
to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
III. Analysis
6

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1468 Filed 01/27/21 Page 7 of 25

A. Claims # 1, 2, and 3: Ineffective Assistance of Counsel
Claims
In his first, second, and third claims Petitioner alleges that he was
denied the effective assistance of counsel. To prevail on his ineffective
assistance of counsel claims, Petitioner must show that the state court’s
conclusion regarding these claims was contrary to, or an unreasonable
application of, Strickland v. Washington, 466 U.S. 668 (1984). See
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Strickland established
a two-prong test for claims of ineffective assistance of counsel: the
petitioner must show (1) that counsel’s performance was deficient, and
(2) that the deficient performance prejudiced the defense. Strickland, 466
U.S. at 687.
Petitioner first argues that trial counsel was ineffective for failing
to discover and use the victim’s prior criminal convictions to impeach her
credibility. Petitioner raised this claim in his pro per supplemental
appeal brief that he filed along with the brief filed by appellate counsel.2

See Defendant’s Standard 4 Supplemental Brief and Exhibits (ECF No. 1015, PageID.1032–1066, see Exhibits specifically at PageID.1061–1066). Standard 4 of
Administrative Order 2004-6, 471 Mich. cii (2004), “explicitly provides that a pro se
brief may be filed within 84 days of the filing of the brief by the appellant’s counsel,
and may be filed with accompanying motions.” Ware v. Harry, 636 F. Supp. 2d 574,
594, n. 6 (E.D. Mich. 2008).
2

7

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1469 Filed 01/27/21 Page 8 of 25

The Michigan Court of Appeals rejected this claim, ruling that
Petitioner had “not identified or provided evidence of the offenses that
the complainant allegedly committed.” People v. Dykes, 2016 WL 716789,
at *4.
The Michigan Court of Appeals’ factual determination was
incorrect. Petitioner attached to his Standard 4 supplemental brief a
judgment of sentence and other documents which established that the
victim had been convicted in 2006 of making a false report or threat of a
bomb or harmful device and malicious use of a telecommunications
device.3
Under Michigan Rule of Evidence 609, evidence that a witness has
been convicted of a crime may not be admitted unless the crime: (1)
contained an element of dishonesty or false statement, or (2) contained
an element of theft, was punishable by more than one year in prison, and
has significant probative value on the issue of credibility. This Court has

Petitioner has also attached to his petition a copy of a court docket sheet
indicating that the victim also pleaded guilty to filing a false police report. (ECF No.
1-1, PageID.125). It does not appear that Petitioner presented evidence of this
conviction to the Michigan Court of Appeals. Nonetheless, even if the Court also
considers evidence of this other conviction, Petitioner’s claim fails for reasons stated
by this Court.
3

8

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1470 Filed 01/27/21 Page 9 of 25

found no Michigan cases which indicate that any of the victim’s prior
convictions could have been used under Michigan Rule of Evidence 609
to impeach her credibility. One unpublished case suggests that a false
bomb threat conviction could be admissible under Michigan Rule of
Evidence 609, in the context of the right to present a defense claim. See
People v. Leaym, No. 235009, 2003 WL 21079821, at *5 (Mich. Ct. App.
May 13, 2003) (rejecting right to present a defense claim when the
defendant was permitted to introduce evidence that the complainant had
a juvenile conviction for making a false bomb threat). However, there are
no

cases

suggesting

that

a

conviction

for

malicious

use

of

telecommunications device can be used for impeachment under Michigan
Rule of Evidence 609. Filing a false police report is a conviction that can
be used to impeach a witness’ credibility. See People v. Adamski, No.
231249, 2002 WL 1308631, at *3 (Mich. Ct. App. June 14, 2002).
Assuming that any or all of these offenses could be used for
impeachment purposes, Petitioner has failed to show that he was
prejudiced by counsel’s failure to use the victim’s prior criminal
convictions because counsel impeached her with a variety of other
evidence.
9

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1471 Filed 01/27/21 Page 10 of 25

During cross-examination, defense counsel elicited testimony from
the victim that she resumed the relationship with Petitioner after an
earlier incident in which she claimed that Petitioner had duct-taped her
in the attic and discharged a gun. (ECF No. 10-12, PageID.614–616).
Counsel also elicited testimony from the victim that she never called the
police after a subsequent incident in which she claimed that Petitioner
broke a flat screen television over her head. The victim also admitted that
although she initially went to the hospital after this incident, she did not
stay to receive any medical treatment. (ECF No. 10-12, PageID.617–620).
Counsel confronted the victim with her prior testimony from the
preliminary examination in which she had acknowledged that Petitioner
had stayed at her house for about three days before the day of the offense.
She also admitted that Petitioner stayed at her house once a week and
he would come over every day to every other day. The victim admitted
that Petitioner’s daughter was still living at the house with her. This
evidence impeached the victim’s testimony that Petitioner no longer lived
at her residence. (ECF No. 10-12, PageID.621-26). Accordingly,
Petitioner’s counsel impeached the victim with a variety of other

10

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1472 Filed 01/27/21 Page 11 of 25

evidence, and Petitioner has not shown that he was prejudiced by the
failure to impeach her through her prior convictions.
Also, on cross-examination of the responding police officers,
Petitioner’s counsel obtained admissions that they did not remove a gun
or bullets from Petitioner when they found him lying under the bed. (ECF
No. 10-12, PageID.680-85, 711–712). One of the officers on crossexamination indicated that when the victim opened the door, she
informed him that everything was alright. This officer admitted that the
victim falsely told him that Petitioner had left out of the back door. (ECF
No. 10-12, PageID.692–693). Another officer stated that the victim did
not want the police to call an ambulance. (ECF No. 10-12, PageID.712–
714). Defense counsel pointed out that in the audiotape of the 911 call
there is no mention of Petitioner having a gun. (ECF No. 10-12,
PageID.700–701). Defense counsel also obtained admissions from the
officer in charge of the case that the victim never told him about the prior
incidents in which she claimed Petitioner had duct-taped her or hit her
over the head with a television set. (ECF No. 10-13, PageID.790–793).
Any failure by trial counsel to impeach the victim with her prior
convictions was not prejudicial because counsel impeached her with other
11

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1473 Filed 01/27/21 Page 12 of 25

damaging evidence. See Davis v. Booker, 589 F.3d 302, 309 (6th Cir.
2009).
Petitioner next claims that trial counsel was ineffective for failing
to call several res gestae witnesses whom Petitioner claims would refute
the victim’s allegations. A habeas petitioner cannot show deficient
performance or prejudice resulting from counsel’s failure to investigate if
the petitioner does not make some showing of what evidence counsel
should have pursued and how such evidence would have been material
to his defense. See Hutchison v. Bell, 303 F.3d 720, 748 (6th Cir. 2002).
Petitioner is not entitled to relief on this claim because he failed to
provide the Michigan courts or this Court with an affidavit from these
witnesses concerning their proposed testimony and willingness to testify
on Petitioner’s behalf. Conclusory allegations of ineffective assistance of
counsel, without any evidentiary support, cannot support a claim for
habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). In
failing to attach any offer of proof or any affidavit sworn by these
witnesses, Petitioner offered, neither to the Michigan courts nor to this
Court, any evidence beyond his own assertions as to whether these
witnesses would have testified and what their proposed testimony would
12

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1474 Filed 01/27/21 Page 13 of 25

have been. Without such proof, Petitioner is unable to establish that he
was prejudiced by counsel’s failure to investigate or to call these
individuals to testify at trial. See Clark v. Waller, 490 F.3d 551, 557 (6th
Cir. 2007).
Moreover, the United States Supreme Court has held that habeas
review under 28 U.S.C. §2254(d) is “limited to the record that was before
the state court that adjudicated the claim on the merits.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). Therefore, Cullen would preclude
the Court from considering any new evidence that Petitioner would
present at this point in support of this portion of his ineffective assistance
of trial counsel claim under 28 U.S.C. §2254(d). Cf. Campbell v.
Bradshaw, 674 F.3d 578, 590, n.3 (6th Cir. 2012) (declining to consider
testimony taken in federal evidentiary hearing because it was not part of
the state-court record). Petitioner presented no evidence to establish that
the outcome of the trial would have been different had these witnesses
been called to testify.
In addition, there is a strong indication from the Michigan Court of
Appeals’ decision that the reason trial counsel did not call these

13

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1475 Filed 01/27/21 Page 14 of 25

witnesses is because he had not been informed by Petitioner at any time
prior to trial that these individuals could be potential defense witnesses:
We note that, although defendant refers to the witnesses as
“res gestae” witnesses, there is no evidence that the
individuals identified in his Standard 4 brief were present at
the scene of the incident. Defendant also does not indicate
that he informed trial counsel about the existence of these
witnesses. Counsel could not be expected to call witnesses
whose existence was unknown to him.
People v. Dykes, 2016 WL 716789, at *4.
A trial attorney is not ineffective for failing to call witnesses that
he is unaware of. See Ballinger v. Prelesnik, 709 F.3d 558, 563 (6th Cir.
2013); see also Bigelow v. Williams, 367 F.3d 562, 571 (6th Cir. 2004).
“Counsel cannot be expected to interview unknown witnesses.” Ballinger,
709 F.3d at 563. In the absence of any evidence that Petitioner informed
trial counsel about these witnesses before trial, the state court’s rejection
of this portion of Petitioner’s ineffective assistance of counsel claim was
not unreasonable. Id.
Petitioner next contends that trial counsel was ineffective for
failing to object to the victim’s testimony about the prior domestic assault
incidents. Petitioner argues that this evidence was irrelevant and
inadmissible pursuant to Michigan Rule of Evidence 404(b)’s prohibition
14

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1476 Filed 01/27/21 Page 15 of 25

on using prior bad acts to establish a defendant’s propensity to commit
the charged offense.
The Michigan Court of Appeals rejected the claim, finding that the
evidence was admissible because Mich. Comp. Laws § 768.27b(1) permits
the introduction of prior assaultive behavior to establish a defendant’s
propensity to commit a crime of domestic violence. People v. Dykes, No.
2016 WL 716789, at *2. Counsel was not ineffective for failing to object
to this evidence. Id., at *5.
Federal habeas courts “‘must defer to a state court’s interpretation
of its own rules of evidence and procedure’ when assessing a habeas
petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (quoting
Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)). The Michigan Court
of Appeals determined that evidence that Petitioner had previously
assaulted the victim was admissible under Michigan law. This Court
must defer to that determination in resolving Petitioner’s ineffective
assistance of counsel claim. See Brooks v. Anderson, 292 F. App’x 431,
437–438 (6th Cir. 2008). Because this Court “cannot logically grant the
writ based on ineffective assistance of counsel without determining that
the state court erred in its interpretation of its own law,” this Court is
15

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1477 Filed 01/27/21 Page 16 of 25

constrained to reject Petitioner’s third ineffective assistance of trial
counsel claim. See Davis v. Straub, 430 F.3d 281, 291 (6th Cir. 2005).
The Michigan Court of Appeals’ determination that Petitioner was

not denied the effective assistance of trial counsel because of counsel’s
failure to object to the admission of this “bad acts” evidence was not
contrary to, or an unreasonable application of, clearly established federal
law, and would not warrant federal habeas relief in light of the Michigan
Court of Appeals’ finding that this “bad acts” evidence was admissible
under Michigan law. See Pearl v. Cason, 219 F. Supp. 2d 820, 828-29
(E.D. Mich. 2002). Petitioner is not entitled to relief on his ineffective
assistance of counsel claims.
B. Claim # 4. The Prosecutorial Misconduct Claim.
Petitioner claims that the prosecutor committed misconduct by
introducing evidence of Petitioner’s prior domestic assaults against the
victim, in violation of Michigan Rule of Evidence 404(b)’s prohibition on
the introduction of propensity evidence. “Claims of prosecutorial
misconduct are reviewed deferentially on habeas review.” Millender v.
Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344
F.3d 487, 512 (6th Cir. 2003)). A prosecutor’s improper comments will be
16

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1478 Filed 01/27/21 Page 17 of 25

held to violate a criminal defendant’s constitutional rights only if they
“‘so infected the trial with unfairness as to make the resulting conviction
a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
Prosecutorial misconduct will thus form the basis for habeas relief only
if the conduct was so egregious as to render the entire trial
fundamentally unfair based on the totality of the circumstances.
Donnelly v. DeChristoforo, 416 U.S. at 643–645. 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). A habeas petitioner must clear a “high bar”
in order to prevail on such claims. Stewart v. Trierweiler, 867 F.3d 633,
638 (6th Cir. 2017).
As set forth above, the Michigan Court of Appeals ruled that
evidence of Petitioner’s prior domestic violence against the victim was
admissible under Michigan law to establish Petitioner’s propensity to
17

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1479 Filed 01/27/21 Page 18 of 25

commit domestic violence. Although Federal Rule of Evidence 404(b) and
its state counterpart Michigan Rule of Evidence 404(b) generally prohibit
a prosecutor from introducing evidence of a defendant’s prior bad acts,
the United States Supreme Court has never held that the federal
constitution forbids a prosecutor from doing so. For this reason the
rejection of Petitioner’s prosecutorial misconduct claim by the Michigan
courts would not entitle Petitioner to habeas relief. See Wagner v. Klee,
620 F. App’x 375, 378 (6th Cir. 2015).
The Michigan Court of Appeals concluded that evidence of
Petitioner’s prior domestic violence was relevant and admissible under
Michigan law. A prosecutor does not commit misconduct by introducing
evidence that is admissible under state law. See Dufresne v. Palmer, 876
F.3d 248, 261 (6th Cir. 2017). Therefore, a prosecutor “does not commit
misconduct by asking questions that elicit inadmissible evidence.” Id.,
(quoting Key v. Rapelje, 634 F. App’x 141, 148 (6th Cir. 2015)). Petitioner
is not entitled to relief on his fourth claim.
C. Claim # 5. The Brady Claim
Petitioner contends that the prosecutor intentionally withheld
evidence of the victim’s prior criminal history which Petitioner argues
18

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1480 Filed 01/27/21 Page 19 of 25

could have been used to impeach her credibility. To prevail on this claim,
Petitioner must show (1) that the state withheld exculpatory evidence
and (2) that the evidence was material either to guilt or to punishment
irrespective of good faith or bad faith of the prosecution. Brady v.
Maryland, 373 U.S. 83, 87 (1963). Evidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A
“reasonable probability is a probability sufficient to undermine
confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 683
(1985). In Strickler v. Greene, 527 U.S. 263, 281–82 (1999), the Supreme
Court articulated three essential elements of a Brady claim: (1) the
evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; (2) the evidence must have been
suppressed by the State, either willfully or inadvertently; and (3)
prejudice must have ensued. “Prejudice (or materiality) in the Brady
context is a difficult test to meet.” Jamison v. Collins, 291 F.3d 380, 388
(6th Cir. 2002).
A habeas petitioner bears the burden of showing the prosecution
suppressed exculpatory evidence. See Bell v. Howes, 703 F.3d 848, 853
19

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1481 Filed 01/27/21 Page 20 of 25

(6th Cir. 2012). Petitioner’s Brady claim fails because the victim’s
criminal convictions were part of a court docket that were public records
available to members of the public. There is no Brady violation where a
defendant knew or should have known the essential facts permitting him
to take advantage of any exculpatory information, or where the evidence
is available from another source. Coe v. Bell, 161 F.3d 320, 344 (6th Cir.
1998). The victim’s criminal convictions were public records that were
readily available to Petitioner or his counsel without the assistance of the
prosecutor. The prosecutor’s failure to provide Petitioner with the
victim’s prior criminal convictions therefore did not violate Brady. See
Bell v. Bell, 512 F.3d 223, 235 (6th Cir. 2008); Lewis v. Tennessee, 279 F.
App’x 323, 325 (6th Cir. 2008).
Petitioner is also not entitled to habeas relief because the victim’s
prior criminal convictions were not material. Evidence that impeaches a
witness “may not be material if the State’s other evidence is strong
enough to sustain confidence in the verdict.” Smith v. Cain, 565 U.S. 73,
76 (2012) (citing United States v. Agurs, 427 U.S. 97, 112–113, and n. 21
(1976)). Impeachment evidence may be considered to be material where
the witness in question supplies the only evidence linking the defendant
20

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1482 Filed 01/27/21 Page 21 of 25

to the crime or the only evidence of an essential element of the offense.
See United States v. Avellino, 136 F.3d 249, 256 (2nd Cir. 1998); Lyon v.
Senkowski, 109 F. Supp. 2d 125, 139 (W.D.N.Y. 2000). The Sixth Circuit
has noted that: “[C]onsiderable authority from the Supreme Court and
our court indicates that a defendant suffers prejudice from the
withholding of favorable impeachment evidence when the prosecution’s
case hinges on the testimony of one witness.” Harris v. Lafler, 553 F.3d
1028, 1034 (6th Cir. 2009) (internal citations omitted).
The victim’s testimony was not the sole evidence against Petitioner.
The two responding police officers testified that when they approached
the house, they could hear two people yelling, although the voices stopped
when they knocked on the door. After knocking for several minutes, the
police threatened to kick the door in, at which point the victim came to
the door with scratches, marks and bruises on her face and body.
Although the victim initially did not tell the police who her assailant was,
she finally told the police that Petitioner was hiding in a bedroom
underneath a bed. The victim told the police that Petitioner hid the gun
between her mattress and box spring. The police found Petitioner
underneath the bed and the gun between the mattress and box spring.
21

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1483 Filed 01/27/21 Page 22 of 25

The victim’s testimony was not material, for purposes of Brady, because
it was supported by additional testimony from other witnesses.
Finally, this Court determined that Petitioner was not prejudiced
by counsel’s failure to impeach the victim with her prior criminal
convictions because they were cumulative of other impeachment
evidence. The Sixth Circuit has observed that “it is well settled that ‘the
test for prejudice under Brady and Strickland is the same.’” Montgomery
v. Bobby, 654 F.3d 668, 680, n. 4 (6th Cir. 2011); see also Hutchison v.
Bell, 303 F.3d at 749. The prosecutor’s alleged failure to provide
Petitioner with the victim’s criminal history did not prejudice Petitioner
under Brady because it was cumulative of the other evidence that had
been introduced at trial to impeach the victim’s credibility. See Brooks v.
Tennessee, 626 F.3d 878, 892-94 (6th Cir. 2010). Petitioner is not entitled
to relief on his fifth claim.
D. Claim # 6. The Sentencing Guidelines Claim
Petitioner claims that his guidelines range under the Michigan
Sentencing Guidelines was incorrectly scored. Petitioner’s claim that the
state trial court incorrectly calculated his sentencing guidelines range
under the Michigan Sentencing Guidelines is not a cognizable claim for
22

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1484 Filed 01/27/21 Page 23 of 25

federal habeas review, because it is essentially a state law claim. See
Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007); Howard v. White,
76 F. App’x 52, 53 (6th Cir. 2003). Errors in the application of the state
sentencing guidelines cannot independently support habeas relief. See
Kissner v. Palmer, 826 F.3d 898, 904 (6th Cir. 2016). Petitioner had “no
state-created interest in having the Michigan Sentencing Guidelines
applied rigidly in determining his sentence.” See Mitchell v. Vasbinder,
644 F. Supp. 2d 846, 867 (E.D. Mich. 2009). “[I]n short, petitioner had no
federal constitutional right to be sentenced within Michigan’s guideline
minimum sentence recommendations.” Doyle v. Scutt, 347 F. Supp. 2d
474, 485 (E.D. Mich. 2004). Any error by the trial court in calculating
Petitioner’s guideline score would not merit habeas relief. Id.
IV. Denial of Certificate of Appealablility
For all of the foregoing reasons, the petition for a writ of habeas
corpus is denied. Further, the Court will not grant a certificate of
appealability. In order to obtain a certificate of appealability, a prisoner
must make a substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is
required to show that reasonable jurists could debate whether, or agree
23

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1485 Filed 01/27/21 Page 24 of 25

that, the petition should have been resolved in a different manner, or that
the issues presented were adequate to deserve encouragement to proceed
further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district
court rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims to be debatable or
wrong. Id. at 484. “The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rules
Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court will deny
Petitioner a certificate of appealability because reasonable jurists would
not find this Court’s assessment of Petitioner’s claims to be debatable or
wrong. See Millender v. Adams, 187 F. Supp. 2d 852, 880 (E.D. Mich.
2002). Petitioner is not granted leave to proceed in forma pauperis on
appeal, as any appeal would be frivolous. See Fed. R. App. P. 24(a).
V. Conclusion
Accordingly, the Court DENIES WITH PREJUDICE the petition
for a writ of habeas corpus. The Court further DENIES a certificate of
appealability and leave to appeal in forma pauperis.
24

Case 5:17-cv-13617-JEL-APP ECF No. 22, PageID.1486 Filed 01/27/21 Page 25 of 25

IT IS SO ORDERED.
Dated: January 27, 2021
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 27, 2021.
s/William Barkholz
WILLIAM BARKHOLZ

25