Black #193803 v. Rapelje

Filing 20

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DANDREE BLACK, # 193803,

)
)
Petitioner,
)
)
v.
)
)
LLOYD RAPELJE,
)
)
Respondent.
)
____________________________________)

Case No. 1:14-cv-22
Honorable Paul L. Maloney
OPINION

This is a habeas corpus proceeding brought pro se by a state prisoner pursuant
to 28 U.S.C. § 2254. On February 16, 2012, a Muskegon County Circuit Court jury
found petitioner guilty of assault with intent to do great bodily harm less than murder.
The trial court judge sentenced petitioner as an habitual offender, fourth felony offense,
to eleven to forty years’ imprisonment.
After unsuccessful attempts to overturn his conviction and sentence in state
court, petitioner filed this habeas corpus petition. Petitioner seeks federal habeas
corpus relief on the following grounds:
I.

The trial court violated petitioner’s due process, equal protection,
and other protected rights when it denied petitioner’s motion to
suppress the statements that he gave to the police.

II.

The trial court violated petitioner’s due process, equal protection,
and other protected rights when it permitted the use at trial of the
preliminary examination testimony provided by Pamela Gathers.

III.

The trial court violated petitioner’s Sixth Amendment rights when
it denied the motion for appointment of new counsel that petitioner
made on the first day of his trial.

IV.

The trial court committed error in sentencing petitioner under
Michigan’s Sentencing Guidelines when it scored 10 points on
offense variable OV-9.

V.

The trial court committed error in sentencing petitioner to 11 to 40
years’ imprisonment as an habitual offender, fourth felony offense.

VI.

The trial court violated petitioner’s due process, equal protection,
and other protected rights by not instructing the jury on missing
evidence and by overruling an objection to the flight instruction
given.

VII.

Petitioner’s rights under the Fourteenth Amendment’s Due Process
Clause were violated because the evidence at trial was insufficient
to support the jury’s verdict finding petitioner guilty of assault with
intent to do great bodily harm less than murder.

VIII. The Michigan Court of Appeals committed error in denying
petitioner’s motion for remand.
IX.

The Michigan Court of Appeals committed error in denying
petitioner’s motion for oral argument.1

(Amended Petition, ECF No. 8, PageID.273-328).
Respondent argues that all grounds raised by petitioner lack merit. (ECF
No. 16). In addition, respondent argues that Grounds IV, V, VII, and “a portion of
Ground VI” are barred by procedural defaults and petitioner has not established

1

The extraordinary remedy of habeas corpus lies only for a violation of the
Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); see Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). Petitioner’s references to the Michigan constitution
have been disregarded because they cannot provide a basis for granting federal habeas
corpus relief.
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grounds to overcome those defaults.

(Id. at 5, 44-47, 59-60, 70-71, 78-79, 95,

PageID.348, 387-90, 402-03, 413-14, 421-22, 438).
After review of the state-court record, the Court finds that petitioner has not
established grounds for federal habeas corpus relief.2 The petition will be denied.
Standard of Review
The Court’s review of this petition is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214
(AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA “dictates a highly
deferential standard for evaluating state-court rulings which demands the state court
decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005)
(citations omitted). “AEDPA requires heightened respect for state court factual and
legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006).
“State-court factual findings [] are presumed correct; the petitioner has the burden of
rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S. Ct.
2187, 2199-2200 (2015) (citations and internal quotations omitted).

2

Both the Supreme Court and the Sixth Circuit have indicated that this Court
has discretion to ignore a procedural default and proceed directly to the merits of an
apparently defaulted claim, when to do so would be more expeditious than an analysis
of the complicated procedural default question. See Lambrix v. Singletary, 520 U.S. 518,
525 (1997); Bales v. Bell, 788 F.3d 568, 573 (6th Cir. 2015); Scott v. Houk, 760 F.3d 497,
506 (6th Cir. 2014). In the present case, the grounds raised by petitioner are meritless,
so a detailed analysis of the complicated procedural default issues is unnecessary.
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If a state court adjudicated the claim, deferential AEDPA standards must be
applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington
v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328, 341 (6th Cir.
2009) ((“[A]ny claim that was adjudicated on the merits in State court proceedings’ is
subject to AEDPA deference.”) (quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal
habeas “retrials” and ensures that state court convictions are given effect to the extent
possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It prohibits “using federal
habeas corpus review as a vehicle to second-guess the reasonable decisions of state
courts.” Parker v. Matthews, 132 S. Ct. 2148, 2149 (2012) (per curiam).
The AEDPA standard is difficult to meet “because it was meant to be.”
Harrington v. Richter, 562 U.S. 86, 102 (2011). “Section 2254(d) reflects the view that
habeas corpus is a guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error corrections through appeal.” Id. at 102-03
(citation and internal quotation omitted); see Woods v. Donald, 135 S. Ct. 1372, 1376
(2015). Section 2254(d) states that an application for a 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 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
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State court proceeding.” 28 U.S.C. § 2254(d); see White v. Wheeler, 136 S. Ct. 456, 460
(2015); Davis v. Ayala, 135 S. Ct. at 2198; White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
The only definitive source of clearly established federal law for purposes of
§ 2254(d)(1) is the holdings—not dicta—of Supreme Court decisions. White v. Woodall,
134 S. Ct. at 1702; see Woods v. Donald, 135 S. Ct. at 1377 (“Because none of our cases
confront ‘the specific question presented by this case,’ the state court’s decision could not
be ‘contrary to’ any holding from this Court.”). “[W]here the precise contours of a right
remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner’s
claims.” Id. (quotations and internal citations omitted).
An unreasonable application of the Supreme Court’s holding must be “‘objectively
unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” White v. Woodall,
134 S. Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). Rather, “[a]s
a condition for obtaining habeas corpus from a federal court, a state prisoner must show
that the state court’s ruling on the claim being presented in federal court was so lacking
in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” White v. Woodall, 134 S. Ct.
at 1702 (quoting Harrington v. Richter, 562 U.S. at 103). “[C]ircuit precedent does not
constitute ‘clearly established Federal law, as determined by the Supreme Court,’ ” and
“[i]t therefore cannot form the basis for habeas relief under AEDPA.” Hill v. Curtin, 792
F.3d 670, 677 (6th Cir. 2015) (quoting Parker v. Matthews, 132 S. Ct. at 2155); see Glebe
v. Frost, 135 S. Ct. 429, 431 (2014) (per curiam) (“As we have repeatedly emphasized, []
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circuit precedent does not constitute ‘clearly established Federal law, as determined by
the Supreme Court.’”).
“[A] state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first instance.”
Wood v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2) requires that this Court
accord the state trial court substantial deference. If reasonable minds reviewing the
record might disagree about the finding in question, on habeas review that does not
suffice to supersede the trial court’s determination. Brumfield v. Cain, 135 S. Ct. 2269,
2277 (2015); Burt v. Titlow, 134 S. Ct. 10, 15 (2013).
Findings of Fact
A.

District Court Proceedings

Petitioner was charged with assault with intent to do great bodily harm less than
murder and being an habitual offender, fourth felony offense.

(ECF No. 17-1,

PageID.449; ECF No. 17-10, PageID.1076). He received a preliminary examination in
the 60th District Court for Muskegon County. (ECF No. 17-2). Ms. Pamela Gathers
gave testimony describing how petitioner attacked his brother, Robert Bateman, with
a crowbar. Mr. Bateman was unarmed. Petitioner hit Bateman in the face multiple
times with a crowbar. Bateman was hospitalized and spent four days in a coma. (Id. at
4-30, PageID.457-83). Judge Michael Nolan found probable cause that the crime of
assault with intent to do great bodily harm less than murder had been committed and

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that it had been committed by petitioner. He bound over petitioner for trial in
Muskegon County Circuit Court. (Id. at 30, PageID.483).

B.

Circuit Court Proceedings

On February 6, 2012, Judge James Graves conducted a hearing on petitioner’s
motion to suppress statements that he made to Officer Chad Van Dam. (ECF No. 17-3).
Judge Graves heard testimony from Officer Van Dam (Id. at 4-12, PageID.489-97) and
petitioner (Id. at 12-19, PageID.497-504). Judge Graves found no constitutional
violation: “[T]here was no violation of any Miranda rule, because I think the Defendant
just volunteered the statements and just started opening up and talking about things
because he chose to do so. And these statements were not in response to any questions
asked by Officer Van Dam, thus there was no violation of Miranda because there was
no questioning.” (Id. at 22, PageID.507).
On February 13, 2012, Judge Graves conducted a hearing on the prosecution’s
motion to declare witness Pamela Gathers as unavailable for trial. (ECF No. 17-4). The
Judge took the matter under advisement and wanted to take a closer look at the
preliminary examination transcript in order to determine the adequacy of counsel’s
opportunity to cross-examine Ms. Gathers. (Id. at 10-11, PageID.518-19).

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Petitioner’s trial began on February 14, 2012, and it ended with the jury’s verdict
on February 16, 2012, finding petitioner guilty of assault with intent to do great bodily
harm less than murder. (Trial Transcripts (TT I to TT III), ECF No. 17-5 to 17-7).
On the morning petitioner’s trial was set to begin, petitioner indicated that he
wanted his attorney to withdraw. (TT I, 3, ECF No. 17-5, PageID.523). Petitioner
claimed that his attorney had an unspecified conflict of interest, was biased, and told
petitioner that he was a liar. Petitioner complained that he “might as well be fighting
against two prosecutors.” (TT I, 4, PageID.524). The judge reminded petitioner that
like a doctor, an attorney must be honest with his client, which often means delivering
“bad news” that the client “may not want to hear.” (TT I, 5, PageID.525). Petitioner
apparently disagreed with his attorney’s trial strategy. The attorney recommended that
petitioner not testify. He gave reasons why it would not be a “smart move” for petitioner
to testify. The court explained to petitioner that the decision whether to testify would
be up to petitioner. Petitioner’s attorney was merely advising him on what he believed
to be the best course of action. In addition, the court advised petitioner that he would
not be provided with a substitute attorney simply because petitioner decided to
manufacture tension with his attorney by using filthy names and profanity towards his
lawyer. Petitioner’s motion was also denied because it was untimely. (TT I, 457,
PageID.525-27).

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The preliminary examination testimony of Pamela Gathers was read to the jury.3
(TT II, 27-31, PageID.746-51). The jury heard the 911 recording stemming from this
incident. (TT II, 32-41, PageID.752-61). A paramedic testified regarding what she
observed when she arrived at the scene and the medical care that she provided to Mr.
Bateman. (TT II, 42-56, PageID.762-76). A police officer testified regarding what she
observed at Mr. Bateman’s West Webster Avenue apartment.

(TT II, 82-106,

PageID.802-26). Phillip Ashendorf testified regarding petitioner’s actions during the
date in question, including borrowing Ashendorf’s crowbar, returning it minutes later,
and telling Ashendorf to hide the crowbar and not to tell anyone. (TT II, 57-81,
PageID.777-801). An emergency room physician testified regarding the extensive and
critical head injuries that Robert Bateman suffered. The injuries were not consistent
with Mr. Bateman falling into a table. (TT II, 153-68, PageID.873-88).
Officer Chad Van Dam testified that he had been dispatched to the West Webster
Avenue Apartment with a basic description of the suspect and a description of his means
of transportation – a purple bicycle. (TT II, 107-09, PageID.827-29). A few blocks away
from Bateman’s apartment, Officer Van Dam saw petitioner pushing a purple bicycle.
When Officer Van Dam stopped his car and started to get out, petitioner volunteered
incriminating statements that he had been in a fight with his brother. Petitioner gave

3

A detective testified regarding the unsuccessful effort to locate the witness and
compel her appearance at petitioner’s trial. (TT II, 170-73, ECF No. 17-6, PageID.89093).
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one version of events claiming that he pushed his brother and that his brother hit his
forehead on the table which caused a laceration. (TT II, 109-11, PageID.829-31). In
another version, petitioner claimed that he had been assaulted by Mr. Bateman and
that Mr. Bateman had punched all over his body. Officer Van Dam saw no injuries or
marks on petitioner indicating that he had been in such an altercation. Petitioner
pointed out a scratch on his right bicep, but it appeared to be an old injury. (TT II, 11112, PageID.831-32). A third version supplied was that Mr. Bateman was so drunk that
he tripped over his own feet and fell into the table, causing his head wound. Petitioner
never claimed that Mr. Bateman had attacked him while armed with a knife or other
weapon. Petitioner never claimed that Mr. Bateman had been beating up Ms. Gathers.
(TT II, 112-13, PageID.832-33).
Robert Bateman was a reluctant witness. (TT I, 151-87, PageID.671-707; TT II,
10-26, PageID.730-46). He testified that he did not remember having an argument with
petitioner or getting into a physical altercation. (TT I, 154-55, PageID.674-75). He did
not recall picking up a knife. (TT I, 159, PageID.679). He testified that he remembered
his brother forcing his way into the apartment and the next thing he remembered was
waking up in the hospital. (TT I, 158-61, PageID.678-80). Later in response to
questions from petitioner’s attorney, Mr. Bateman testified that he did recall having a
knife. (TT II, 10, PageID.730). He stated that he threatened his brother with the knife.
(TT II, 12, PageID.732). Mr. Bateman stated that he “fabricated a little bit” in his
earlier testimony that he did not recall whether he had a knife or not. (TT II, 13,
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PageID.733). Mr. Bateman denied that he was trying to structure his testimony to
protect his brother. (TT II, 18, PageID.209). Mr. Bateman subsequently offered
testimony that he saw his brother with the crowbar in his hand and he was coming
straight at Mr. Bateman. (TT II, 21-22, PageID.741-42). He testified that he grabbed
a knife because petitioner was coming at him with a crowbar. (TT II, 22-23, PageID.74243).
Officer Justin Sunday testified that he read petitioner his Miranda rights.
Petitioner elected to waive those rights and gave a statement to the police. Petitioner’s
jury heard the recording of this interview. Petitioner claimed that he never had a
crowbar and that Mr. Bateman never had a weapon. (TT II, 123-48, PageID.843-68).
Petitioner elected to testify. (TT II, 174-87, PageID.894-907). The summary of
his testimony provided by the Michigan Court of Appeals is accurate. (See Op. at 2,
ECF No. 17-10, PageID.1068). As anticipated by defense counsel, petitioner faced
extensive cross-examination regarding the various versions of events that he had
supplied. (TT II, 188-204, PageID.908-24; TT III, 10-51, PageID.938-79).
On February 16, 2012, the jury found petitioner guilty of assault with intent to
do great bodily harm less than murder. (TT III, 118, PageID.1046).
On March 13, 2012, Judge Graves conducted a sentencing hearing. (ECF No. 178). Petitioner advised Judge Graves that he had reviewed the presentence report and
the sentencing guidelines sheet and discussed them with his attorney. Petitioner
informed the court that he did not have any proposed additions or corrections to those
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documents. (Id. at 3-4, PageID.1053-54). Judge Graves described the prior felony
convictions that supported sentencing petitioner as an habitual offender, fourth felony
offense. Petitioner had previously been convicted of the felonies of unarmed robbery,
prisoner in possession of contraband, unlawful driving away of a motor vehicle (Id. at
5-6. PageID.1055-56). Petitioner had a “very lengthy criminal history.” (Id. at 7,
PageID.1057). The presentence report noted that this was petitioner’s “9th felony
conviction,” (ECF No. 17-11, PageID.1499). Petitioner asked the trial court to impose
a lenient sentence because he was “the father of two and a grandfather of three”
children. (ECF No. 17-8 at 6, PageID.1056). Judge Graves sentenced petitioner to
eleven to forty years’ imprisonment, with no credit for time served because petitioner
was on parole when he committed this crime. This sentence was consecutive to the
parole sentence. (Id. at 7, PageID.1057; Judgment of Sentence Commitment to
Corrections Department, ECF No. 17-10, PageID.1077).
B.

Subsequent Proceedings

Petitioner pursued an appeal in the Michigan Court of Appeals. Petitioner’s
appellate counsel raised the issues corresponding to Grounds I through VI of his habeas
corpus petition.4 (Defendant-Appellant’s Brief, Statement of Questions Presented, ECF

4

In addition, appellate counsel filed a motion asking the Michigan Court of
Appeals to remand the case back to the trial court. (ECF No. 17-10, PageID.1145-60).
On February 1, 2013, the Michigan Court of Appeals denied the motion. (Id. at
PageID.1246). Appellate counsel filed a motion requesting oral argument, which was
denied. (Id. at PageID.1262-68, 1279). Ground VIII and IX are petitioner’s claims that
the Michigan Court of Appeals committed error in denying these motions.
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No. 17-10, PageID.1099-1101). Petitioner filed a pro se brief raising the issues found in
Ground VII where he challenges the sufficiency of the evidence to support his conviction
for assault with intent to do great bodily harm less than murder and claims that defense
counsel was ineffective for failure to move for a directed verdict. (Standard 4 Brief,
Statement of Question Presented, ECF No. 17-10, PageID.1252). On June 25, 2013, the
Michigan Court of Appeals entered its decision rejecting the arguments raised on
appeal and affirming petitioner’s conviction and sentence.
PageID.1067-74).

(ECF No. 17-10,

On December 23, 2013, the Michigan Supreme Court denied

petitioner’s application for leave to appeal. (ECF No. 17-11, PageID.1270).
On January 9, 2014, petitioner filed his habeas corpus petition. (ECF No. 1). On
March 17, 2014, petitioner filed his amended petition. (ECF No. 8).

Discussion
I.

Petitioner’s Statements to Officer Van Dam
In Ground I, petitioner argues that the trial court violated his constitutional

rights when it denied his motion to suppress the statements that he gave to Officer Chad
Van Dam. Petitioner argues that Michigan’s courts committed error when they found
that he was not in custody when he made his statement to Officer Van Dam and that he
volunteered the statements rather than being questioned. (Amended Petition, ECF No.
8, PageID.275-79; see also Defendant-Appellant’s Brief on Appeal at 11-15, ECF No. 1710, PageID.1112-16).
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In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that, in
order to protect an individual’s Fifth Amendment privilege against self incrimination,
a custodial interrogation must be preceded by warnings of his right to remain silent,
that any statement may be used against him, and that he has the right to retained or
appointed counsel. Id. at 478-79; see also Dickerson v. United States, 530 U.S. 428, 435
(2000). If an individual is not “in custody,” Miranda and its progeny do not apply.
Bobby v. Dixon, 565 U.S. 23, 28 (2011). Volunteered statements of any kind are not
barred by the Fifth Amendment and their admissibility is not affected by the holding
in Miranda. Miranda, 384 U.S. at 478; accord United States v. Cole, 315 F.3d 633, 636
(6th Cir. 2003); Wells v. Lafler, No. 2:10-cv-10191, 2013 WL 757620, at * 6 (E.D. Mich.
Feb. 28, 2013).

The test for determining whether an individual is “in custody” for purposes of
Miranda is objective:
As used in [ ] Miranda case law, “custody” is a term of art that specifies
circumstances that are thought generally to present a serious danger of
coercion. In determining whether a person is in custody in this sense, the
initial step is to ascertain whether, in light of the objective circumstances
of the interrogation, a reasonable person would have felt he or she was not
at liberty to terminate the interrogation and leave. And in order to
determine how a suspect would have gauged his freedom of movement,
courts must examine all of the circumstances surrounding the
interrogation. Relevant factors include the location of the questioning, its
duration, statements made during the interview, the presence or absence

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of physical restraints during the questioning, and the release of the
interviewee at the end of the questioning.
Howes v. Fields, 565 U.S. 499, 508-09 (2012) (citations and quotations omitted).
“Determining whether an individual’s freedom of movement was curtailed, however, is
simply the first step in the analysis, not the last. Not all restraints on freedom of
movement amount to custody for purposes of Miranda.” 565 U.S. at 509.
The Supreme Court has “declined to accord talismanic power to the
freedom-of-movement inquiry, and ha[s] instead asked the additional question whether
the relevant environment presents the same inherently coercive pressures as the type
of station house questioning at issue in Miranda. [Supreme Court] cases make clear
that the freedom-of-movement test identifies only a necessary and not a sufficient
condition for Miranda custody.” Id. at 1189-90. Thus, the “temporary and relatively
nonthreatening detention involved in a traffic stop or Terry stop does not constitute
Miranda custody.” Id. at 1190. The “custody” determination does not turn on the
subjective views of either the interrogating officer or the person being questioned. See
Stansbury v California, 511 U.S. 318, 323 (1994); see also Yarborough v. Alvarado, 541
U.S. 652, 663, 667-69 (2004).
In Yarborough, the Supreme Court emphasized that “the custody test is general.”
541 U.S. at 665. “Applying a general standard to a specific case can demand a
substantial element of judgment. As a result, evaluating whether a rule application was
unreasonable requires considering the rule’s specificity. The more general rule, the

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more leeway courts have in reaching outcomes on case-by-case determinations.” Id. at
664. It is not enough for a habeas petitioner to point to some factors weighing in favor
of a view that he was in custody. “Differing indications” on custody factors do not
undermine a state court’s decision, and a habeas court “cannot grant relief under
AEDPA by conducting [its] own independent inquiry into whether the state court was
correct as a de novo matter. A federal court may not issue the writ simply because that
court concludes in its independent judgment that the state-court decision applied the
law incorrectly. Relief is available under § 2254(d)(1) only if the state court's decision is
objectively unreasonable.” 541 U.S. at 665 (citations and quotations omitted).
Here, the Michigan Court of Appeals applied the appropriate legal standard,
agreed with the trial court’s findings that petitioner was not in custody or questioned by
Officer Van Dam, and it rejected petitioner’s claims that his constitutional rights had
been violated. “At the hearing on the motion to suppress, Officer Van Dam testified that
he never asked defendant any question and that defendant ‘just willingly kind of
blab[bed] out a statement.’ ” (Op., 2, ECF No. 17-10, PageID.1068). Petitioner “was not
handcuffed, restrained, or told he was being detained.” (Id.). There was no Fifth
Amendment violation because petitioner was not in custody and he had not been
questioned by Officer Van Dam. (Id. at 2-3, PageID.1068-69).
Petitioner has not shown that the decision of the Michigan Court of Appeals
rejecting the claims found in Ground I was “contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1).
II.

Confrontation Clause
In Ground II, petitioner argues that the trial court violated his constitutional

rights when it permitted the use of Pamela Gathers’s preliminary examination
testimony.

(Amended Petition, ECF No. 8, PageID.280-87; see also Defendant-

Appellant’s Brief on Appeal at 16-21, ECF No. 17-10, PageID.1117-22).
The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all criminal
prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses
against him.’ [The Supreme Court has] held that this bedrock procedural guarantee
applies to both federal and state prosecutions.” Crawford v. Washington, 541 U.S. 36,
42 (2004). In Crawford, the Supreme Court divided out-of-court statements into two
categories: those that are “testimonial” and those that are not. Id. at 50-69. The Court
identified testimonial hearsay as the “primary” concern of the Confrontation Clause. Id.
at 53.

Testimonial out-of-court statements by a witness is barred under the

Confrontation Clause, unless (1) the witness was unavailable, and (2) the defendant had
a prior opportunity to cross-examine the witness, regardless of whether such statements
are deemed reliable. Id. at 68.
Petitioner argues that more should have been done to secure Ms. Gathers’s
presence at trial. Judge Graves conducted a hearing and held that Ms. Gathers was
unavailable for trial. The Michigan Court of Appeals held that there was a good-faith
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effort in its attempt to locate the witness for trial. “[T]he sheriff’s department attempted
to find Gathers at three different addresses. The prosecutor worked with the Muskegon
Police Department and the Muskegon Heights Police Department. Detective Keith
Stratton and the prosecutor searched for Gathers and knocked on doors looking for her.
When Gathers was contacted by telephone, she would not reveal her location and
indicated she would not cooperate.” (Op., 3, ECF No. 17-10, PageID.1069). The state
court findings that the witness was unavailable are well supported. Petitioner has not
addressed, much less carried, his burden of presenting “clear and convincing evidence”
that is necessary to overcome the presumption of correctness that attaches to factual
findings made by Michigan’s courts.

28 U.S.C. § 2254(e)(1).

The witness was

unavailable for purposes of the Crawford rule.
In California v. Green, 399 U.S. 149 (1970), the Supreme Court held that there
was no Confrontation Clause violation where the witness gave prior testimony at the
defendant’s preliminary examination and was subject to cross-examination by the
defendant’s attorney. Id. at 151, 158-68.
The Michigan Court of Appeals applied the Confrontation Clause standards
established by Crawford and its progeny. It rejected petitioner’s Confrontation Clause
argument, finding that petitioner had an opportunity to effectively cross-examine Ms.
Gathers during the preliminary hearing. (Op., 3-4, ECF No. 17-10. PageID.1069-70).
The Court of Appeals observed that the Confrontation Clause “guarantees only an
opportunity for effective cross-examination, not cross-examination that is effective in
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whatever way, and to whatever extent, the defense might wish.” (Id. at 4, PageID.1070)
(quoting United States v. Owens, 484 U.S. 554, 559 (1988)). The appellate court noted
that there were only two times when defense counsel’s questioning was limited at the
preliminary examination. On both occasions, counsel’s questions were duplicative of
questions that he had posed and that Ms. Gathers had already answered. Petitioner’s
attorney had the opportunity to effectively cross examine Gathers. There was no
Confrontation Clause violation. (Op. at 4, PageID.1070).
The Sixth Circuit recognizes that a habeas corpus petitioner faces an uphill
battle where, as here, the state court has rejected the petitioner’s Confrontation Clause
argument based on the petitioner’s claim that there was not an adequate opportunity
for cross-examination of the witness at the preliminary examination. “If there is room
for reasonable debate on the issue, the state courts decision to align itself with one side
of the argument is necessarily beyond this court’s power to remedy under § 2254, even
if it turns out to be wrong.” Williams v. Bauman, 759 F.3d 630, 636 (6th Cir. 2014); see
Al-Timimi v Jackson, 379 F. App’x. 435, 437-39 (6th Cir. 2010); accord Miller v.
MacLaren, No. 1:12-cv-117, 2016 WL 7396701, at *8 (W.D. Mich. Nov. 11, 2016)
(collecting cases); Jones v. Winn, No. 4:15-cv-12239, 2016 WL 6432696, at *5 (E.D. Mich.
Oct. 31, 2016) (“Because there is ‘no clearly established [F]ederal law’ within the
meaning of § 2254(d)(1) contradicting the finding of the state court that cross
examination during a preliminary examination hearing satisfies the requirement of
Crawford, the court must deny habeas relief on this claim.”); Hurick v. Woods, No.
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2:14-cv-81, 2016 WL 1127971, at *5 (W.D. Mich. Mar. 23, 2016) (“[P]etitioner ‘has failed
to identify any Supreme Court precedent supporting his contention that his opportunity
to cross-examine [the witness] at his own preliminary hearing was inadequate to satisfy
the rigors of the Confrontation Clause’ ” (quoting Bauman, 759 F.3d at 635)).
The Court finds that Ground II does not provide a basis for federal habeas corpus
relief. Petitioner has not shown that the decision of the Michigan Court of Appeals
rejecting Ground II “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States” or
“was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
III.

New Counsel
Ground III is petitioner’s claim that the trial court violated his Sixth Amendment

rights when it denied his motion for new counsel that he made on the first day of his
trial. (Amended Petition, ECF No. 8, PageID.289-91; see also Defendant-Appellant’s
Brief on Appeal at 22-25, ECF No. 17-10, PageID.1123-26).
The Sixth Amendment to the United States Constitution provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right to ... the Assistance of Counsel
for his defense.” U.S. CONST. amend. VI. The Supreme Court has held that “an element
of this right is the right of a defendant who does not require appointed counsel to choose
who will represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006).

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[T]he right to counsel of choice does not extend to defendants who require counsel to be
appointed for them.” 548 U.S. at 151.
The Supreme Court has not yet articulated a standard for deciding a Sixth
Amendment claim based on a habeas petitioner's allegation that the trial court denied
his request for substitute counsel. See Smith v. Berghuis, 1:10-cv-774, 2016 WL
4472893, at *10 (W.D. Mich. Aug. 25, 2016); Griffin v. Warden, Noble Corr. Inst., No.
2:14-cv-857, 2016 WL 1090960, at *7 (S.D. Ohio Mar. 21, 2016) (collecting cases denying
habeas corpus relief based on the absence of any decision contrary to or involving an
unreasonable application of clearly established Federal law, as determined by the
Supreme Court of the United States); accord Woods v. Donald, 135 S. Ct. at 1377.
“[N]ovelty alone–at least insofar as it renders the relevant rule less than ‘clearly
established’–provides a reason to reject it under AEDPA.” Premo v. Moore, 562 U.S. at
127.
Here, on the first day of trial, petitioner indicated that he wanted a new attorney.
The judge found that petitioner’s request was untimely and that none of the grounds on
which he sought appointment of new counsel had factual or legal merit. (TT I, 4-7, ECF
No. 17-5, PageID.524-27). The Michigan Court of Appeals held that the trial court did
not abuse its discretion when it denied petitioner’s request for substitute counsel. (Op.,
4-5, ECF No. 17-10, PageID.1070-71).
Petitioner has not shown that the decision of the Michigan Court of Appeals
rejecting Ground III was “contrary to, or involved an unreasonable application of,
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clearly established Federal law, as determined by the Supreme Court of the United
States,” or that it “was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
IV.

Sentence
In Grounds IV and V, petitioner challenges his sentence.

Ground IV is

petitioner’s argument that the trial court committed error in scoring offense variable
OV-9 under Michigan’s sentencing guidelines. Ground V is his claim that the trial court
committed error in sentencing him to eleven to forty years’ imprisonment as an habitual
offender, fourth felony offense. (Amended Petition, ECF No. 8, PageID.292-305; see also
Defendant-Appellant’s Brief on Appeal at 26-37, ECF No. 17-10, PageID.1127-38).
The Michigan Court of Appeals rejected all petitioner’s arguments challenging
his sentence. (Op., 5-7, ECF No. 17-10, PageID.1071-73). “The trial court did not err
when it scored OV 9 at ten points.” (Id. at 5, PageID.1071). Defense counsel was not
ineffective when he elected against making petitioner’s “meritless objection” to the
scoring of OV9.

(Id.).

Federal sentencing guidelines did not apply.

(Id. at 6,

PageID.1072). Petitioner’s “sentence was within the applicable guidelines range[.]” (Id.).
The trial court satisfied Michigan’s “articulation requirement” and his minimum and
maximum sentences were proportionate.

(Id.).

The Court of Appeals rejected

petitioner’s claim that he was entitled to a downward departure from the sentencing
guidelines based on an inference that could be made from the Presentence Investigation
Report (PSIR) that he had a mental disease or defect. “[T]he PSIR d[id] not reflect any
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mental or current substance abuse issues. Instead, it reflect[ed] defendant had ‘good’
mental health and was not currently using substances or in treatment.” (Id.). The
information in petitioner’s PSIR was accurate and complete, and he was not entitled to
resentencing. (Id.).
“[A] federal court may issue the writ to a state prisoner ‘only on the ground that
he is in custody in violation of the Constitution or laws or treaties of the United States.’”
Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). Federal habeas
corpus relief does not lie for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67
(1991).
Petitioner’s challenges to his sentence in Ground IV and V are generally
state-law claims. They do not provide a basis for habeas corpus relief. See Kissner v.
Palmer, 826 F.3d 898, 902 (6th Cir. 2016); see also Howard v. White, 76 F. App’x 52, 53
(6th Cir. 2003). To the extent that petitioner raised federal claims in Grounds IV and
V, he has not shown entitlement to relief under 28 U.S.C. § 2254(d).
The Michigan Court of Appeals held that petitioner had abandoned his claims
in Ground V that his sentence was excessive and that counsel was ineffective for failure
to object to the length of his sentence. (Op., , PageID.1073). Petitioner relies on the
same deficient brief in this Court. (ECF No. 8, PageID.296). Upon review, the Court
finds that petitioner’s fragmentary arguments are patently meritless.
The Eighth Amendment does not require strict proportionality between a crime
and its punishment. Harmelin v. Michigan, 501 U.S. 957, 965 (1991); see Bonilla v.
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Lafler, 501 F. App’x 494, 497 (6th Cir. 2012); see also Lockyer v. Andrade, 538 U.S. 63,
77 (2003) (gross disproportionality principle applies only in the “extraordinary case”);
Ewing v. California, 538 U.S. 11, 36 (2003) (principle applies only in “ ‘the rare case in
which a threshold comparison of the crime committed and the sentence imposed leads
to an inference of gross disproportionality’ ”) (quoting Harmeline, 501 U.S. at 1105). A
sentence that falls within the maximum penalty authorized by statute “generally does
not constitute ‘cruel and unusual punishment.’” Austin v. Jackson, 213 F.3d 298, 302
(6th Cir. 2000); see also Thomas v. Berghuis, No. 15-1164, 2015 WL 5313636, at * 5 (6th
Cir. Sept. 10, 2015); Hynes v. Birkett, 526 F. App’x 515, 521-22 (6th Cir. 2013). Under
Michigan law, the maximum sentence for habitual offender, fourth offense, is life
imprisonment. MICH. COMP. LAWS § 769.12; see also Alonzo v. Burt, 1:14-cv-946, 2016
WL 2864812, at * 9 (W.D. Mich. May 17, 2016); Broussard v. Romanowski, 2:13-cv11120, 2013 WL 5999275, at * 5 (E.D. Mich. Nov. 12, 2013). Given that petitioner’s
sentence was far less than the statutory maximum and he has an extensive criminal
history, the Court finds that petitioner’s sentence withstands scrutiny under Eighth
Amendment standards.
Petitioner’s related assertion that his counsel was ineffective requires no
discussion beyond observing that petitioner’s attorney was not required to raise these
meritless challenges to his sentence. See Smith v. Bradshaw, 591 F.3d 517, 523 (6th
Cir. 2010); O’Hara v. Brigano, 499 F.3d 492, 506 (6th Cir. 2007).

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In summary, Grounds IV and V do not provide a basis for federal habeas corpus
relief.
V.

Jury Instructions
In Ground VI, petitioner argues that the trial court violated his due process,

equal protection, and other protected rights by not instructing the jury on missing
evidence and by overruling an objection to the flight instruction given. (Amended
Petition, ECF No. 8, PageID.306-09; see also Defendant-Appellant’s Brief on Appeal at
38-41, ECF No. 17-10, PageID.1139-42).
Typically, a claim that a trial court gave an improper jury instruction is not
cognizable on habeas review. Instead, the petitioner must show that the erroneous
instruction “so infected the entire trial that the resulting conviction violates due
process.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977); see also Estelle v. McGuire, 502
U.S. 62, 75 (1991) (erroneous jury instructions may not serve as the basis for habeas
relief unless they have “so infused the trial with unfairness as to deny due process of
law”); Wade v. Timmerman-Cooper, 785 F.3d 1059, 1077-78 (6th Cir. 2015).
The Michigan Court of Appeals rejected petitioner’s arguments related to the
jury instructions. It found that petitioner’s argument regarding a missing evidence
instruction was both waived and meritless. (Op., 7, ECF No. 17-10, PageID.1073).
Petitioner’s related claim of ineffective assistance of counsel was equally meritless.
There was no request for a missing evidence instruction. (Id.). The Court of Appeals
rejected petitioner’s argument that the instruction was necessary because the recording
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of petitioner’s statements to Officer Van Dam were not produced. The missing evidence
instruction “only applie[d] if the prosecution act[ed] in bad faith when it fail[ed] to
produce the evidence. There [was] no evidence in this case that the prosecution acted
in bad faith.” (Id.) (citation omitted). Counsel was not ineffective when he failed a
meritless request for a missing evidence instruction. (Id.).
The Court of Appeals also rejected petitioner’s arguments regarding the flight
instruction was improper. “The flight instruction is supported when there is evidence
that the defendant fled the scene, ran from the police, resisted arrest, attempted to
escape custody, or left the jurisdiction. To provide the flight instruction, there must be
some evidence that the defendant ‘feared apprehension’ when he left the scene. In this
case, there was evidence that after the assault, defendant returned the crowbar to
Ashendorf, asked Ashendorf to hide it and not tell anyone, and was in a hurry. This was
evidence that defendant fled, and the flight instruction was properly provided.” (Id.)
(citations omitted).
The Court finds that Ground VI does not provide a basis for federal habeas corpus
relief. 28 U.S.C. § 2254(d).
VI.

Sufficiency of the Evidence
Ground VII is petitioner’s argument that his rights under the Fourteenth

Amendment’s Due Process Clause were violated because the evidence at trial was
insufficient to support the jury’s verdict finding petitioner guilty of assault with intent
to do great bodily harm less than murder. Petitioner states that he acted in self-defense,
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that his brother testified that he had a knife, and he believes that his trial counsel was
ineffective for failure to move for a directed verdict based on petitioner’s claim of selfdefense. (Amended Petition, ECF No. 8, PageID.311-15; see also Standard 4 Brief, 1-6,
ECF No. 17-10, PageID.1254-59).
The Michigan Court of Appeals found that petitioner did not present any
developed argument on the merits of this claim in his Standard 4 brief, and it deemed
the issue abandoned. (Op., 7, ECF No. 17-10, PageID.1073).
A section 2254 challenge to the sufficiency of 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.; see Cavazos v.
Smith, 565 U.S. 1, 2 (2011) (per curiam) (Jackson v. Virginia “makes clear that it is the
responsibility of the jury -- not the court -- to decide what conclusions should be drawn
from evidence admitted at trial.”). 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 supporting the conviction,
in the light most favorable to the prosecution, with specific reference to the elements of

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the crime as established by state law. Jackson, 443 U.S. at 324 n. 16; Davis v. Lafler,
658 F.3d 525, 531 (6th Cir. 2011).
“The elements of assault with intent to do great bodily harm less than murder
are: (1) an attempt or threat with force or violence to do corporal harm to another (an
assault), and (2) an intent to do great bodily harm less than murder.” People v. Brown,
703 N.W.2d 230, 236 (Mich. Ct. App. 2005) (quotation and emphasis omitted). “This
Court has defined the intent to do great bodily harm as an intent to do serious injury
of an aggravated nature.” Id. (quotation omitted); see also People v. Sutton, No. 328692,
2017 WL 104548, at * 3 (Mich. Ct. App. Jan. 10, 2017). A jury may infer a defendant’s
intent based on his actions and the circumstances in the case. People v Lugo, 542
N.W.2d 921, 927 (Mich. Ct. App. 1995); accord King v. Wood, No. 2:14-cv-100, 2016 WL
3124613, at * 2 (W.D. Mich. June 3, 2016).
The evidence, viewed in the light most favorable to the prosecution, was more
than sufficient to support petitioner’s conviction under the Jackson v. Virginia standard.
Petitioner “hit Mr. Bateman in the face and head a couple times with a crowbar.
Bateman did not have a knife or other weapon. Bateman was in the hospital for six days
and was in a coma for four days. Bateman had many injuries in the face and head area,
including fractures and bleeding on the brain.” (Op. 1, ECF No. 17-10, PageID.1067).
The Court cannot substitute its own credibility determination for the jury’s, nor can the
Court reweigh the evidence. See Herrera v. Collins, 506 U.S. 390, 401-02 (1993); Hill v.
Mitchell, 842 F.3d 910, 934 (6th Cir. 2016). Petitioner’s disagreement with the jury’s
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credibility determination with regard to his testimony claiming that he acted in selfdefense and his brother’s testimony regarding a knife is not a basis for federal habeas
corpus relief. See, e.g., Thomas v. Haas, No. 15-12015, 2016 WL 1698925, at * 4 (E.D.
Mich. Apr. 28, 2016) (“Because the jury essentially chose to reject petitioner’s testimony
that he acted in self-defense, which is a credibility determination to which this Court
must defer, petitioner is not entitled to habeas relief on his sufficiency of evidence
claim.”).
The Court finds that under the Jackson v. Virginia standard, there was more
than sufficient evidence on which a reasonable trier of fact could find that all the
elements of the crime of assault with intent to do great bodily harm less than murder
had been established beyond a reasonable doubt. Further, petitioner’s counsel was not
required to make a meritless motion for a directed verdict. Ground VII does not provide
a basis for federal habeas corpus relief.
VI.

Rulings Made by the Michigan Court of Appeals Regarding
Petitioner’s Requests for Oral Argument and an Evidentiary Hearing
In Ground VIII, petitioner argues that the Michigan Court of Appeals committed

error in denying his motion for remand for an evidentiary hearing. Ground IX is
petitioner’s claim that the Michigan Court of Appeals committed error in denying his
appellate attorney’s motion for oral argument on the issues that counsel raised on direct
appeal. (Amended Petition, ECF No. 8, PageID.316-27; see also ECF No. 17-10.
PageID.1145-60, 1262-68).

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Grounds VIII and IX do not provide a basis for federal habeas corpus relief. The
Michigan Supreme Court has supervisory power over the Michigan Court of Appeals.
This Court does not. Grounds VIII and IX are state law claims. See, e.g., Hawkins v.
Woods, 651 F. App’x 305, 309 (6th Cir. 2016); Poindexter v. Jones, No. 1:05-cv-833, 2008
WL 5422855, at * 21 (W.D. Mich. Dec. 30, 2008). Federal habeas corpus relief is
available to a person in custody pursuant to the judgment of a State court “only on the
ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a).
III.

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. 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, the Court has examined each of petitioner’s
claims under the Slack standard.

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Petitioner cannot demonstrate that reasonable jurists would find that the denial
of habeas corpus relief on each of the grounds raised in his petition is debatable or
wrong. See Slack, 529 U.S. at 484. Accordingly, the Court will enter an order denying
petitioner a certificate of appealability.
Conclusion
For the foregoing reasons, the habeas corpus petition will be denied.
Dated: February 23, 2017

/s/ Pual L. Maloney
Paul L. Maloney
United States District Judge

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