Heath #808210 v. Curtin

Filing 29

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LORENZO LAMAR HEATH,
Petitioner,
v.

Case No. 1:13-cv-234
Honorable Robert Holmes Bell

CINDI S. CURTIN,
Respondent.
_______________________________/
OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. On June 14, 2011, following a jury trial in the Ingham County Circuit Court, Petitioner
Lorenzo Lamar Heath was convicted of three counts of armed robbery, MICH. COMP. LAWS
§ 750.529, one count of home invasion, MICH. COMP. LAWS § 750.110a(2), one count of conspiracy
to commit armed robbery, MICH. COMP. LAWS § 750.157a1, and one count of possession of a firearm
during the commission of a felony (felony firearm), MICH. COMP. LAWS 750.227b.2 On July 22,
2011, Petitioner was sentenced to concurrent terms of imprisonment of: (1) 12 years to life on each
of the armed robbery convictions; (2) 12 to 20 years on the home invasion conviction; and (3) 3 to

1

The court’s docket sheet indicates that the jury found Petitioner guilty of conspiracy to commit a legal act in
an illegal manner. (Ingham Cty. Cir. Ct. Register of Actions, ECF No. 16, p. 13.) The trial transcript indicates that the
jury found Petitioner guilty of the charge of conspiracy to commit armed robbery. (June 14, 2011 Trial Tr., ECF No.
23, pp. 93-94.) The statute declaring the conduct criminal is the same, MICH. COMP. LAWS § 750.157a, but the penalties
are different. Conspiracy to commit armed robbery would carry a sentence comparable to the sentences imposed for
armed robbery. MICH. COMP. LAWS § 750.157a(a). Conspiracy to commit a legal act in an illegal manner, on the other
hand, carries a sentence of not more than 5 years. MICH. COMP. LAWS § 750.157a(d). It appears that Petitioner is the
beneficiary of a clerical error in that his sentence on the conspiracy conviction had a maximum term of 5 years.
2

The jury found Petitioner not guilty of armed robbery or assault with intent to do great bodily harm less than
murder with respect to one of the four victims.

5 years on the conspiracy conviction. Petitioner received a consecutive sentence of 2 years on the
felony firearm conviction.
In his pro se petition, Petitioner raises three grounds for relief, the same grounds he
raised in the Michigan Court of Appeals and Michigan Supreme Court on his direct appeal:
I.

The evidence was legally insufficient.

II.

Petitioner’s Sixth Amendment right to cross-examination was denied.

III.

Where a primary witness is threatened with revocation of his plea agreement,
it is constitutionally improper to deny his request for counsel, ultimately
destroying Petitioner’s right to fundamental fairness and a fair trial.

(Pet. App. A, ECF No. 1-1, PageID.22.) The Michigan Court of Appeals issued an opinion
affirming the trial court on August 14, 2012. Petitioner applied for leave to appeal in the Michigan
Supreme Court. That court denied leave by order entered November 20, 2012. Petition did not
petition for a writ of certiorari to the United States Supreme Court.
On March 1, 2013, Petitioner filed his petition for writ of habeas corpus in the Court.
(ECF No. 1.) On October 23, 2013, Respondent filed an answer to the petition (ECF No. 14), stating
that the grounds should be denied because they are without merit. On October 28, 2013, Respondent
filed the state-court record, pursuant to Rule 5, RULES GOVERNING § 2254 CASES. (ECF Nos. 16 26.)3 Upon review and applying the AEDPA standards, the Court finds that all habeas grounds are

3

The Rule 5 materials include several transcripts of the trial court proceedings. The transcripts shall be
referenced as follows:
September 2, 2010 Preliminary Examination
June 6, 2011 Trial Transcript (Volume 1)
June 7, 2011 Trial Transcript (Volume 2)
June 9, 2011 Trial Transcript (Volume 3)
June 10, 2011 Trial Transcript (Volume 4)
June 13, 2011 Trial Transcript (Volume 5)
June 14, 2011 Trial Transcript (Volume 6)
July 22, 2011 Sentencing Transcript

(Prelim. Examination Tr., ECF No. 17, p.__)
(Trial Tr. I, ECF No. 18, p.__)
(Trial Tr. II, ECF No. 19, p.__)
(Trial Tr. III, ECF No. 20, p.__)
(Trial Tr. IV, ECF No. 21, p.__)
(Trial Tr. V, ECF No. 22, p.__)
(Trial Tr. VI, ECF No. 23, p.__)
(Sentencing Tr., ECF No. 24, p.__).

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meritless. Accordingly, the Court will deny the petition for failure to raise a meritorious federal
claim.
Procedural and Factual Background
On the evening of January 4, 2009, Ernestine Hernandez was making stuffed
manicotti in her apartment at 3620 Richmond Street in Lansing, Michigan. (Trial Tr. II, ECF No.
19, pp. 105-108.) As she worked in the kitchen, her live-in boyfriend, Benito Solis, played video
games in the living room while her 15-year-old son, Augustine, watched. (Id.) The activities of the
apartment residents were interrupted by a knock on their patio door. (Id., p. 109.)
The visitor was Eric Blakney-Smith, known to Ernestine’s family as “Red.” (Id., p.
110.) Red was no stranger to the apartment. His cousin Dre was Ernestine’s upstairs neighbor. (Id.,
p. 111.) Red had visited to play video games several times. (Id., p. 112.)
Red had come in through the patio, but, shortly after he entered, he left by way of the
front door. (Id., p. 113.) A couple of minutes later, Ernestine heard a knock at that door. (Id., pp.
113-114.) Augustine answered the door. (Id.) He walked back into Ernestine’s view with a gun
held to his head by Frank Whitfield, known to Ernestine as “Blue.” (Id., pp. 114-115.)
Blue was accompanied by Red and two other men, strangers to Ernestine. (Id.,
pp. 115-122.) Red acted as if he too was a victim of the gunmen. His hands were up and when
Whitfield informed the residents that they were being robbed and to lie down, facing the floor, Red
did so as well. (Id., pp. 118, 123.) Ernestine indicated that over the course of the robbery each man,
except Red, held a gun at some point. The men, eventually including Red, ransacked the apartment
collecting items of value. (Id., pp. 127-133.) The robbers left after someone knocked on the sliding

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door. (Id., pp. 133-136.) Augustine and Benito corroborated Ernestine’s description of the events
in the apartment that evening. (Trial Tr. III, ECF No. 20, pp. 31-70, 131-156.)
The person who knocked on the door and interrupted the robbery was Benito’s
brother Carlos. (Id., pp. 72, 76.) Red chased him down and robbed him; then another man4 arrived,
threatened Carlos’ family and shot Carlos in the leg. (Id., pp. 86-94.)
Ultimately, the two known robbers were apprehended. Although each told a slightly
different story, Red and Blue identified their co-conspirators: Blue’s brother (Petitioner) and
Petitioner’s son, Devon Patton. The victims could not identify Petitioner or his son. The testimony
of Red and Blue was critical to link Petitioner to the crimes.5
Standard of Review
This action is governed by the Antiterrorism and Effective Death Penalty Act of
1996, PUB. L. 104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001).
The AEDPA “prevents federal habeas ‘retrials’” and ensures that state court convictions are given
effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA
has “drastically changed” the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th
Cir. 2001). An application for writ of habeas corpus on behalf of a person who is incarcerated
pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on
the merits in state court unless the adjudication: “(1) resulted in a decision that was contrary to, or

4

There was no testimony conclusively linking Petitioner to the robbery or shooting of Carlos. The jury acquitted
Petitioner of both counts (robbery and assault) relating to crimes against Carlos. (Trial Tr. VI, ECF No. 23, pp. 93-94.)
5

At Blue’s plea and at the preliminary examination for Petitioner and Devon Patton, Blue provided sworn
testimony that identified Petitioner as one of the four men. At trial, although he acknowledged his earlier testimony, he
indicated that only three men were present and Petitioner was not present. Red consistently identified Petitioner as one
of the four men.

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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 upon an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v.
Donald, 575 U.S. __, 135 S. Ct. 1372, 1376 (2015) (internal quotation marks omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme
Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and
not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d
at 655. In determining whether federal law is clearly established, the Court may not consider the
decisions of lower federal courts. Lopez v. Smith, 135 S. Ct. 1, 3 (2014); Bailey, 271 F.3d at 655.
Moreover, “clearly established Federal law” does not include decisions of the Supreme Court
announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S. Ct. 38
(2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have
appeared to the Michigan state courts in light of Supreme Court precedent at the time of the statecourt adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene,
132 S. Ct. at 44).
A federal habeas court may issue the writ under the “contrary to” clause if the state
court applies a rule different from the governing law set forth in the Supreme Court’s cases, or if it
decides a case differently than the Supreme Court has done on a set of materially indistinguishable
facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas
petitioner is required to ‘show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and comprehended in

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existing law beyond any possibility for fairminded disagreement.’” Woods, 2015 WL 1400852, at
*3 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, “[w]here the precise
contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a
prisoner’s claims.” White v. Woodall, 572 U.S. ___, 134 S. Ct. 1697, 1705 (2014) (quotations marks
omitted).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy,
160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is
presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.
2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state
appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v.
Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).
Discussion
I.

Sufficiency of the evidence

A § 2254 challenge to the sufficiency of the evidence is governed by the standard set
forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979), which is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” This standard of
review recognizes the trier of fact’s responsibility to resolve reasonable conflicts in testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Issues
of credibility may not be reviewed by the habeas court under this standard. See Herrera v. Collins,
506 U.S. 390, 401 02 (1993). Rather, the habeas court is required to examine the evidence

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supporting the conviction, in the light most favorable to the prosecution, with specific reference to
the elements of the crime as established by state law. Jackson, 443 U.S. at 324 n.16; Allen v.
Redman, 858 F.2d 1194, 1196-97 (6th Cir. 1988).
The Jackson v. Virginia standard “gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Moreover, because both
the Jackson standard and AEDPA apply to Petitioner’s claims, “‘the law commands deference at two
levels in this case: First, deference should be given to the trier of fact’s verdict, as contemplated by
Jackson; second, deference should be given to the Michigan [appellate court’s] consideration of the
trier of fact’s verdict, as dictated by AEDPA.’” Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)
(en banc) (quoting Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008)). This standard erects “a
nearly insurmountable hurdle” for petitioners who seek habeas relief on sufficiency of the evidence
grounds. Id. at 534 (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).
Applying the Jackson standard, the Michigan Court of Appeals concluded that the
testimony of Red and Blue was sufficient to support finding the essential elements of the charged
crimes beyond a reasonable doubt:
This case arises out of an armed robbery of an apartment committed by four
assailants in January 2009. Heath argues that the evidence was insufficient to
support his convictions because the evidence did not establish his involvement in the
crimes. We disagree. We review de novo a challenge to the sufficiency of the
evidence. “In determining whether the prosecutor has presented sufficient evidence
to sustain a conviction, an appellate court is required to take the evidence in the light
most favorable to the prosecutor” to ascertain “whether a rational trier of fact could
find the defendant guilty beyond a reasonable doubt.” “[D]irect and circumstantial
[evidence], as well as all reasonable inferences that may be drawn therefrom,” may
be considered to determine whether there was sufficient evidence to support a
defendant’s conviction.

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The eyewitnesses whose apartment was burglarized were unable to identify
Heath as a participant in the robbery and there was no physical evidence
demonstrating that Heath was in the home. Two accomplices, however, testified
regarding Heath’s involvement in the armed robbery. Heath asserts that the alleged
accomplices’ testimony was not sufficient to convict him. Frank Whitfield [Blue],
Heath’s half-brother, initially testified that Heath left the vehicle and was not present
during the robbery. Whitfield, however, received a plea agreement in exchange for
his testimony against Heath and the other accomplices, and had testified regarding
Heath’s involvement in the armed robbery during Whitfield’s plea hearing, Heath’s
preliminary examination, and during a proffer statement to police. At trial, Whitfield
indicated that he did not want to testify at trial and explained that he previously
testified against Heath because he was angry with Heath and wanted a plea
agreement. But when Whitfield was confronted with his previous statements
detailing Heath’s involvement in the armed robbery, he then testified that it was “the
truth of this case” that Heath robbed the apartment with his accomplices. While
Whitfield’s testimony was somewhat erratic, the jury as the finder of fact could have
found that the portion of Whitfield’s testimony implicating Heath was credible.
Additionally, another accomplice, Eric Blakney–Smith [Red] testified in
exchange for a plea agreement. Blakney–Smith testified that Heath was involved in
the planning, and participated in the armed robbery, including having possession of
a handgun at times during the armed robbery.
Moreover, the occupants of the apartment, who were eyewitnesses to the
robbery, testified consistently regarding the actions of the four assailants. The details
provided by the eyewitnesses included, how the assailants gained access to the
apartment, the directions the assailants gave the occupants, as well as information
regarding the assailants’ search and exit from the apartment. The testimony provided
by the eyewitnesses was consistent with Whitfield’s previous statements, and
Blakney–Smith’s trial testimony. “This Court will not interfere with the trier of
fact’s role of determining the weight of the evidence or the credibility of the
witnesses.” Therefore, viewing the evidence in the light most favorable to the
prosecution, there was sufficient evidence to support Heath’s convictions.
People v. Heath, No. 305364, 2012 WL 3322069 *1-2 (Mich. Ct. App. Aug. 14, 2012) (footnotes
omitted). The court of appeals cited People v. Tennyson , 790 N.W.2d 354 (Mich. 2010) for the
sufficiency standard. The Tennyson court, in turn, relied on People v. Hardiman, 646 N.W. 2d 158
(Mich. 2002); Hardiman relied upon People v. Johnson, 597 N.W. 2d 73 (Mich. 1999), People v.
Wolfe, 489 N.W. 2d 748 (Mich. 1992), and People v. Hampton, 285 N.W.2d 284 (Mich. 1979).

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Johnson, Wolfe, and Hampton cite Jackson as the source of the standard. Thus, it cannot be said
that the standard applied by the court of appeals was contrary to clearly established federal law.
In its application of the Jackson standard, the court of appeals carefully reviewed the
evidence, considering that evidence in a light most favorable to the prosecution. The court’s entire
analysis is quoted above. The analysis on its face is consistent with, not contrary to, clearly
established federal law. The factual findings with respect to the evidence offered by the prosecutor
appear to be reasonable.
Petitioner does not even attempt to find fault with the state court’s application of the
Jackson standard or its factual findings. Instead, he simply views the same evidence in a light that
favors him and, therefore, reaches different conclusions. Petitioner’s entire argument depends on
rejecting the testimony of Red and Blue because, according to Petitioner, that testimony was
“bought” with favorable sentences. This Court is not permitted to make such assessments of
credibility on habeas review. Herrera, 506 U.S. at 401-02 It is Petitioner’s argument, not the state
court’s determination, that is a patently unreasonable application of the Jackson standard.
Petitioner’s challenge to the sufficiency of the evidence has no merit.
II.

Cross-examination of Blue

Petitioner claims that his cross-examination of Red was unconstitutionally limited.
As a preliminary matter, although Petitioner complains about the cross-examination of Red, the
transcript excerpt he quotes to support his argument is taken from the cross-examination of Blue.
(Pet. App. A, ECF No. 1-1, PageID.42-43.) During the cross-examination, Petitioner’s counsel, Ms.
Adam, attempted to elicit from Blue testimony that his favorable plea/sentencing deal was dependent
upon the content of his testimony. The challenged exchange reads:

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Q (Ms. Adam) Then did they tell you would get less time if you testified in a certain
way?
MR. CRINO: Well, objection. The police or Prosecutor?
THE COURT: I think that's an improper question. I think all you can ask is if he
testified truthfully. You can’t ask leading questions along those lines. So you have
to have a more appropriate question.
THE WITNESS: If I testified THE COURT: And I once again would caution the jury that questions are not
evidence. Only answers are evidence.
Q (MS. ADAM) Were you told that your penalty would be less if you testified in a
certain manner?
A Yes.
MR. CRINO: Excuse me.
THE COURT: Strike that question. I think the issue is if he gives a truthful
statement. You haven’t even gotten to the testimony portion yet. I think the
question should be what were you told if you cooperated, something along those
lines.
MS. ADAM: Okay. But that’s not exactly where I’m going.
THE COURT: We aren’t at the testimony yet. You’re leading the witness.
MS. ADAM: I’m allowed to lead in cross, Your Honor.
THE COURT: I think it has to be chronological. We have three different things here.
You have a proffer. You have preliminary examination under oath. You have a
statement under oath before Judge Giddings. So maybe if you lay a little better
foundation, zero in on what we’re talking about, when it occurred.
MS. ADAM: Okay. I don’t think I was going to go chronologically. But I will try.
THE COURT: I am not saying you have to, but you just have to identify at what
point in time you are inquiring about.

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(Trial Tr. IV, ECF No. 21, pp. 95-97.) After that exchange, Petitioner’s counsel continued to probe
why Blue had implicated Petitioner if Blue now acknowledged that Petitioner had not been part of
the robbery. Blue’s response, however, was not that he lied because the police or the prosecutor had
promised more favorable treatment, but that he lied because he was mad at Petitioner. (Id., pp. 100101.) There was no other limitation on the content of Petitioner’s cross-examination of Blue (or
Red for that matter.)
The Confrontation Clause of the Sixth Amendment gives the accused the right “to
be confronted with the witnesses against him.” U.S. CONST., Am. VI; Pointer v. Texas, 380 U.S.
400, 403-05 (1965) (applying the guarantee to the states through the Fourteenth Amendment). The
Supreme Court long has read this right as securing an adequate opportunity to cross-examine
adverse witnesses. United States v. Owens, 484 U.S. 554, 557 (1988) (citing Mattox v. United
States, 156 U.S. 237, 242-43 (1895), and Douglas v. Alabama, 380 U.S. 415, 418 (1965)). As the
Supreme Court early held,
The primary object of the constitutional provision in question was to prevent
depositions or ex parte affidavits, such as were sometimes admitted in civil cases,
being used against the prisoner in lieu of a personal examination and crossexamination of the witness, in which the accused has an opportunity, not only of
testing the recollection and sifting the conscience of the witness, but of compelling
him to stand face to face with the jury in order that they may look at him, and judge
by his demeanor upon the stand and the manner in which he gives his testimony
whether he is worthy of belief.
Mattox, 156 U.S. at 242-43, quoted in California v. Green, 399 U.S. 149, 157-58 (1970). While the
Confrontation Clause guarantees an opportunity for effective cross-examination, it does not
guarantee “‘cross-examination that is effective in whatever way, and to whatever extent, the defense
might wish.’” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (quoting Delaware v. Fensterer,
474 U.S. 15, 20 (1985)). “[T]rial judges retain wide latitude insofar as the Confrontation Clause is
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concerned to impose reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’safety, or interrogation that
is repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679; see also United States v.
Adams, 722 F.3d 788, 834 (6th Cir. 2013); King v. Trippett, 192 F.3d 517, 524 (6th Cir. 1999).
The Michigan Court of Appeals resolved Petitioner’s challenge as follows:
Heath next argues that he was denied the right to cross examine witnesses
when the trial court errantly limited his cross-examination of Whitfield. We disagree.
We review a trial court's decision on an evidentiary issue for an abuse of
discretion.11 An abuse of discretion occurs when the trial court chooses an outcome
that falls outside the range of “reasonable and principled outcome[s].”
“The Confrontation Clause of the United States Constitution provides that
‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted
with the witnesses against him.’” “A witness may be cross-examined on any matter
relevant to any issue in the case, including credibility.” “[P]roof of bias is almost
always relevant because the jury, as finder of fact and weigher of credibility, has
historically been entitled to assess all evidence that might bear on the accuracy and
truth of a witness’ testimony.” Prevention of “any exploration of a witness’ bias” is
a denial of a defendant’s right to confrontation. A trial court, however, may limit
cross-examination regarding bias because “the trial court has wide discretion
regarding admissibility of bias during cross-examination.”
While the trial court sustained the prosecution’s objection to defense
counsel’s question regarding whether Whitfield was told that he would receive less
prison time if he provided certain testimony, the trial court did not deny Heath the
opportunity to question Whitfield regarding his bias. Review of the trial court’s
comments in context reveals that the trial court indicated that it was necessary for
defense counsel to clarify which of Whitfield’s statements she was inquiring about
when formulating her questions in order to lay a foundation. Whitfield was
questioned extensively by defense counsel regarding the details of Whitfield’s plea
agreement and the circumstances surrounding Whitfield’s varying statements.
Accordingly, there was no abuse of discretion by the trial court.
Heath, 2012 WL 3322069 at *2 (footnotes omitted). The court of appeals’ statement of the standard
is consistent with, and not contrary to, clearly established federal law. Its determination of the facts
with regard to the broad scope of the cross-examination permitted by the trial court is reasonable on

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the record. The court placed no real limit on the scope of cross-examination with respect to Blue’s
bias. Petitioner’s habeas challenge based on the Confrontation Clause has no merit.
III.

Blue’s right to counsel

At the very beginning of Blue’s testimony, he asked the trial court for an opportunity
to raise an issue. (Trial Tr. IV, ECF No. 21, p. 21.) After the jury was excused, Blue told the judge
that the prosecutor had threatened him by indicating to Blue that failure to testify consistently with
his plea colloquy might result in Blue losing the benefits of his plea bargain. (Id., pp. 22-27.) The
court explained that the prosecutor’s statement were not a threat, but simply a statement of the plea
agreement. (Id., pp. 22-51.) Blue requested and Petitioner’s counsel supported a request by Blue
to have the advice of counsel. (Id., pp. 48-49.) The court refused. (Id.)
Petitioner claims that, under these circumstances, Blue was denied his Sixth
Amendment right to counsel and, for that reason, his testimony was effectively coerced.
Accordingly, Petitioner argues, Petitioner’s trial was rendered fundamentally unfair and he was
denied due process.6
In Alexander v. Lafler, No. 11-10286, 2013 WL 3191134 (E.D. Mich. Jun. 21, 2013),
the court rejected the argument Petitioner makes here:
Under federal law, a criminal defendant does not have standing to challenge the
voluntariness of a statement made by a witness to the police because the privilege
against self-incrimination of the Fifth and Fourteenth Amendments is personal in
nature and does not extend to third parties called as witnesses at trial. United States
v. Nobles, 422 U.S. 225, 234 (1975); Berry v. Mintzes, 529 F.Supp. 1067, 1075 (E.D.
Mich. 1981). While the Sixth Circuit has indicated that the use of a witness’s
coerced testimony may violate a defendant’s rights under the Due Process Clause of

6

The court of appeals concluded that Petitioner lacked standing to raise the issue. Heath, 2012 WL 3322069
at *2 (“Heath argues that Whitfield’s right to counsel was violated when he was coerced to testify against Heath when
Whitfield was told that failure to do so would result in him losing his plea agreement. Heath is not permitted to raise
this issue on Whitfield’s behalf.”)

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the Fourteenth Amendment, see Bradford v. Johnson, 476 F.2d 66 (6th Cir. 1973),
the Supreme Court has not so ruled. See Samuel v. Frank, 526 F.3d 566, 569 (7th
Cir. 2008); see also Johnson v. Bell, 525 F.3d 466, 479–81 (6th Cir. 2008)
(distinguishing Webb v. Texas, 409 U.S. 95(1972), and Washington v. Texas, 388
U.S. 14 (1967), and denying relief on a claim that authorities coerced a witness into
providing favorable prosecution testimony). Federal habeas review is limited to a
determination of whether the state court decision comports with clearly established
federal law as determined by the Supreme Court at the time the state court renders
its decision. 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 412; Mitzel v. Tate, 267
F.3d 524, 530–531 (6th Cir. 2001). Petitioner has thus failed to state a claim upon
which habeas relief may be granted as to this issue.
Alexander, 2013 WL 3191134 at *10 (parallel citations omitted). The Alexander court’s reasoning
is persuasive. Here, however, Petitioner is not entitled to relief for an additional reason: the coercion
did not succeed. Blue ignored the “coercive threats.” His testimony did not implicate Petitioner.
Instead, Blue testified that he dropped off Petitioner before the robbery and that Petitioner was not
there. Thus, any violation of Blue’s constitutional rights was harmless in that it did not result in
prejudice to Petitioner.
On habeas review, a court must assess harmlessness under the standard set forth in
Brecht v. Abrahamson, 507 U.S. 619 (1993), regardless of whether the state appellate court
recognized the error and reviewed it for harmlessness. See Hargrave, 248 F. App’x at 728 (citing
Fry v. Pliler, 551 U.S. 112, 129 S. Ct. 2321, 2328 (2007)); see also Vasquez v Jones, 496 F.3d 564,
574-75 (6th Cir. 2007).

The Brecht standard requires the Court to consider whether the

constitutional error in the state criminal trial had a “substantial and injurious effect” on the result.
Brecht, 507 U.S. at 638. The “error” of which Petitioner complains had no effect at all. His habeas
claim has no merit.
Conclusion
In light of the foregoing, the Court will deny Petitioner’s application because it fails
to present a meritorious federal claim.

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Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability.
Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must “engage in a reasoned
assessment of each claim” to determine whether a certificate is warranted. Id. at 467. Each issue
must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529
U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of
Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at 484, to warrant a grant of the
certificate, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id. “A petitioner satisfies this standard
by demonstrating that . . . jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying
this standard, the Court may not conduct a full merits review, but must limit its examination to a
threshold inquiry into the underlying merit of Petitioner’s claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s denial of
Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
of appealability.
A Judgment and Order consistent with this Opinion will be entered.

Dated: December 20, 2016

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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