Williams #332196 v. Palmer

Filing 5

OPINION; Judgment and Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

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

Case No. 1:16-cv-1091
Honorable Janet T. Neff

CARMEN PALMER,
Respondent.
_______________________________/
OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a
preliminary review of the petition to determine whether “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.”
Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be
summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court
has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4
includes those petitions which raise legally frivolous claims, as well as those containing factual
allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir.
1999). After undertaking the review required by Rule 4, the Court concludes that the petition must
be dismissed because it fails to raise a meritorious federal claim.

Factual Allegations
Petitioner is incarcerated in the Michigan Reformatory. Following a jury trial,
Petitioner was convicted in the Wayne County Circuit Court of second-degree murder, MICH. COMP.
LAWS § 750.317, felony murder, MICH. COMP. LAWS § 750.316(1)(b), and first-degree arson, MICH.
COMP. LAWS § 750.72(1)(b). The Michigan Court of Appeals provided the following summary of
the evidence presented at trial:
This case arises from two arson-related deaths occurring on August 20, 2012,
at a home in Detroit. Bobby Cross lived at the home with girlfriend Janet Smith and
his stepson, Darryl Simms. Defendant is Janet’s son. Defendant and his wife also
lived at Bobby’s home. Bobby’s daughter, Jacqueline Cross, lived at the home
immediately next door with her daughter Shameka Cross.
Around 11:00 p.m. on August 19, 2012, Jacqueline visited Bobby’s home and
saw Bobby and defendant engaged in an argument. Bobby wanted defendant to pay
rent, but defendant refused. Later that night, Shameka woke to the sound of Janet
arguing with defendant. Janet told Shameka that Bobby was trying to shoot
defendant. Around 5:00 a.m. on the morning of August 20, 2012, Shameka again
heard yelling. She looked out a window and saw fire in the front porch area of her
grandfather’s house. She called 9-1-1. Bobby and Darryl died in the fire.
When Janet arrived at the scene she told police, “I can’t believe this. I think
my son set the house on fire.” At trial, Bobby’s friend Lawrence Ingram testified
that defendant once threatened to “burn this b---h out,” referring to Bobby’s house.
Darryl’s sister Deborah Simms also testified that defendant threatened to “f—k up”
the house. Gary Jennings, a friend of defendant’s and an inmate at the Wayne
County Jail, informed police that defendant confessed to setting the fire during a
conversation with Jennings.
Medical Examiner Dr. Allecia Wilson testified about the autopsies she
performed on Bobby and Darryl. The victims died of smoke and soot inhalation and
she initially concluded that their deaths were accidental. However, after the police
informed her that the fire had been intentionally set, Wilson changed the manner of
death in her autopsy reports to homicide. Another doctor, Dr. Lokman Sung, signed
separate “Supplemental Report[s] for a Pending Certificate of Death,” also changing
the manner of death for each victim. Wilson’s original reports were admitted into
evidence with Sung’s supplemental reports attached as amendments. Sung did not
testify at trial.

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People v. Williams, No. 318856, 2015 WL 558307, at *1 (Mich. Ct. App. Feb. 10, 2015). On direct
appeal, Petitioner claimed that his Sixth Amendment right to confrontation and his Fourteenth
Amendment due process rights were violated when Dr. Wilson was permitted to testify regarding
Dr. Sung signing supplemental death certificates changing the cause of death to homicide. He
further claimed that Defense counsel was ineffective for failing to object to Wilson’s testimony
concerning Dr. Sung. In an unpublished opinion issued on February 10, 2015, the Michigan Court
of Appeals rejected Petitioner’s claims of error and affirmed his conviction. The Michigan Supreme
Court subsequently denied Petitioner’s application for leave to appeal on September 29, 2015.
In his application for habeas corpus relief, Petitioner raises only his claim of
ineffective assistance of counsel, as follows:
INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO OBJECT TO
TESTIMONIAL EVIDENCE WITHOUT AN OPPORTUNITY FOR CROSSEXAMINATION OF DR. WILSON WHO TESTIFIED TO DR. SUNG’S DEATH
CERTIFICATES. DR. SUNG DID NOT TESTIFY.
(Pet., ECF No. 1, PageID.3.)1
Standard of Review
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

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Petitioner filed a previous habeas corpus action in this Court challenging the same conviction. See Williams
v. Palmer, 1:16-cv-521 (W.D. Mich.). In an opinion and judgment issued on July 7, 2016, the Court dismissed the action
for lack of exhaustion because the petition contained both exhausted and unexhausted claims. Rather than returning to
the state court to present his unexhausted claims, Petitioner filed the instant petition raising only his exhausted claim.

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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 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) (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.3dat 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

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court was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.’” Woods, 135 S. Ct. at 1376
(quoting Harrington v. Richter, 562 U.S. 83, 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 court may grant relief under the “unreasonable application” clause “if the state court
correctly identifies the governing legal principle from our decisions but unreasonably applies it to
the facts of the particular . . . case.” Williams, 529 U.S. at 407. A federal habeas court may not find
a state adjudication to be “unreasonable” “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 411; accord Bell, 535 U.S. at 699. Rather, the issue is whether the state
court’s application of clearly established federal law is “objectively unreasonable.” Id. at 410.
“[R]elief is available under § 2254(d)(1)’s unreasonable-application clause if, and only if, it is so
obvious that a clearly established rule applies to a given set of facts that there could be no
‘fairminded disagreement’ on the question.” White, 134 S. Ct. at 1706-07 (quoting Harrington, 562
U.S. at 103).
Where the state appellate court has issued a summary affirmance, it is strongly
presumed to have been made on the merits, and a federal court cannot grant relief unless the state
court’s result is not in keeping with the strictures of the AEDPA. See Harrington, 562 U.S. at 99;
see also Johnson v. Williams, 133 S. Ct. 1088, 1094 (2013); Werth v. Bell, 692 F.3d 486, 494 (6th
Cir. 2012) (applying Harrington and holding that a summary denial of leave to appeal by a Michigan
appellate court is considered a decision on the merits entitled to AEDPA deference). The

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presumption, however, is not irrebuttable. Johnson, 133 S. Ct. at 1096. Where other circumstances
indicate that the state court has not addressed the merits of a claim, the court conducts de novo
review. See id. (recognizing that, among other things, if the state court only decided the issue based
on a state standard different from the federal standard, the presumption arguably might be
overcome); see also Harrington, 562 U.S. at 99-100 (noting that the presumption that the statecourt’s decision was on the merits “may be overcome when there is reason to think some other
explanation for the state court’s decision is more likely”); Wiggins v. Smith, 539 U.S. 510, 534
(2003) (reviewing habeas issue de novo where state courts had not reached the question).
Discussion
Petitioner argues that counsel was ineffective when he failed to object to a violation
of the Confrontation Clause when Dr. Wilson testified regarding the supplemental autopsy reports
prepared by Dr. Sung, who did not testify at trial.
In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court
established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To
establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel’s
performance fell below an objective standard of reasonableness; and (2) that counsel’s deficient
performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome.
A court considering a claim of ineffective assistance must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The
defendant bears the burden of overcoming the presumption that the challenged action might be
considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also
Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel’s strategic decisions

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were hard to attack). The court must determine whether, in light of the circumstances as they existed
at the time of counsel’s actions, “the identified acts or omissions were outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690. Even if a court determines that
counsel’s performance was outside that range, the defendant is not entitled to relief if counsel’s error
had no effect on the judgment. Id. at 691.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. This “bedrock procedural guarantee” is applicable in both federal and state
prosecutions. Crawford v. Washington, 541 U.S. 36, 42 (2004). “The central concern of the
Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by
subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.”
Maryland v. Craig, 497 U.S. 836, 845 (1990). The Confrontation Clause therefore prohibits the
admission of an out-of-court testimonial statement at a criminal trial unless the witness is
unavailable to testify and the defendant had a prior opportunity for cross examination. Crawford,
541 U.S. at 59.
In Melendez–Diaz v. Massachusetts, the Supreme Court expanded the definition of
testimonial statements to include statements that are “functionally identical to live, in-court
testimony.” 557 U.S. 305, 310–11 (2009). The Court held that the prosecution violated the
defendant’s right to confrontation by admitting certificates of analysis identifying a substance found
in the defendant’s possession as cocaine. Id. at 329. Three years later, the Supreme Court reiterated
that “[u]nder settled evidence law, an expert may express an opinion that is based on facts that the
expert assumes, but does not know, to be true.” Williams v. Illinois, __U.S. __, 132 S. Ct. 2221,

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2228 (2012). According to Williams, out-of-court statements that are related by the expert solely
for the purpose of explaining the assumptions on which the expert’s opinion rests “are not offered
for their truth and thus fall outside the scope of the Confrontation Clause.” Id. Moreover, an
out-of-court statement is testimonial only if it has “the primary purpose of accusing a targeted
individual of engaging in criminal conduct” and, usually, it involves a “formalized statement[ ], such
as affidavits, depositions, prior testimony, or confessions.” Id. at 2242.
The Michigan Court of Appeals found that Dr. Wilson’s testimony regarding the
supplemental death certificates was properly admitted, and, thus, counsel did not render ineffective
assistance for failing to raise an objection. The court stated:
On appeal, defendant argues that Wilson’s testimony about Sung signing the
supplemental reports violated his right to confront adverse witnesses. We disagree.
Because defendant did not object to Wilson’s testimony at trial, this issue is
unpreserved. See People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003).
Unpreserved claims of constitutional error are reviewed for plain error affecting
substantial rights. People v Pipes, 475 Mich 267, 274; 715 NW2d 290 (2006).
The United States and the Michigan Constitutions guarantee a criminal
defendant the right to confront adverse witnesses. People v Fackelman, 489 Mich
515, 524-525; 802 NW2d 552 (2011), citing US Const, Am VI; Const 1963, art 1,
§ 20. Out of court testimonial statements are inadmissible under the Confrontation
Clause unless the witness appears at trial, or the defendant had prior opportunity to
cross-examine the witness. People v Nunley, 491 Mich 686, 698; 821 NW2d 642
(2012), citing Crawford v Washington, 541 US 36, 53-54; 124 S Ct 1354; 158 L Ed
2d 177 (2004). Autopsy reports are testimonial in nature and may not be introduced
against the defendant at trial unless the witness who made the report is unavailable
and the defendant had a prior opportunity for cross-examination. See People v
Lewis, 490 Mich 921; 806 NW2d 295 (2011).
Here, Wilson performed the autopsies and initially concluded in her autopsy
reports that the manner of death for each victim was accidental. Upon learning from
police that the fire was intentionally set, Wilson changed the manner of death
recorded on her autopsy reports from accidental to homicide. Wilson further testified
that Sung, who had signed the death certificates, also filed a supplemental report
similarly changing the manner of death for each victim. Defendant argues that “Dr.
Wilson’s testimony about Dr. Sung, and his conclusions and changes made to his
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certificates, violated [defendant’s] Sixth Amendment right of confrontation.” But
defendant mischaracterizes Wilson’s testimony. Wilson testified:
In our field, our standard is in terms of fires caused by arson. If the
investigation deems that arson was the cause of the fire, and that fire
resulted in the death of a person, then the manner of death is
corrected to homicide.
Wilson testified that she and Sung changed the manner of death on the autopsy
reports and death certificates as a matter of routine practice to conform to the results
of the police investigation of the fire. She did not testify that Sung formed any
opinion regarding the manner of the victims’ deaths. And Wilson had firsthand
knowledge of Sung’s reasons for signing the supplemental reports. Accordingly,
there was no error, plain or otherwise, in admitting Wilson’s challenged testimony.
And defendant’s ineffective assistance of counsel claim premised on this argument
is also without merit. “Trial counsel is not required to advocate a meritless position.”
People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000).
But even if the admission of Wilson’s testimony in this regard constituted
plain error, defendant has not established that such error affected his substantial
rights. See People v. Carines, 460 Mich. 750, 763, 764; 597 NW2d 130 (1999). In
brief, Jacqueline, Shameka, Ingram, and Deborah all testified that defendant and
Bobby argued frequently, and that Bobby did not want defendant living in his home
without paying rent. Jacqueline, Shameka, and Deborah also understood that
defendant physically struck Bobby during a previous argument. Ingram and Deborah
testified that defendant made threats to burn or “f--k up” Bobby’s house. Janet told
police immediately after the fire, “I think my son set the house on fire.” Jennings
also testified that defendant told him that he had intentionally set the fire. In light
of the record evidence, defendant has not demonstrated prejudice from the alleged
error, i.e., that the error affected the outcome of the trial. See id.
Williams, 2015 WL 558307, at *2.2
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Notwithstanding the Michigan Court of Appeals finding that the autopsy reports were testimonial, federal
courts have observed that there is no clearly established Supreme Court precedent that autopsy reports and death
certificates are testimonial in nature. Mitchell v. Kelly, 520 F. App’x 329, 331 (6th Cir. 2013) (“[T]he decision of the
Ohio Court of Appeals was not an unreasonable application of Crawford given the lack of Supreme Court precedent
establishing that an autopsy report is testimonial.”); see also Cato v. Prelesnik, No. 1:08-cv-1146, 2012 WL 2952183
at *3 (W.D. Mich. July 18, 2012) (“[W]hen his conviction became final in 2005, no clearly established Supreme Court
precedent established the right he seeks to vindicate. Cato cites to Crawford v. Washington, but though it was decided
in 2004, Crawford did not clearly establish that autopsy results are testimonial in nature. Indeed, as the magistrate judge
notes, even under Melendez–Diaz this conclusion is uncertain.”); Hensley v. Roden, 755 F.3d 724, 735 (1st Cir. 2014)
(concluding that neither Crawford nor Melendez-Diaz clearly establish that autopsy reports are testimonial); Vega v.
Walsh, 669 F.3d 123, 128 (2d Cir. 2012) (concluding that even if it were true that autopsy reports were testimonial under
Melendez-Diaz or Bullcoming v. New Mexico, 564 U.S. 647 (2011), they were not clearly established to be so under
Crawford and Crawford was the appropriate measure when the conviction became final); McNeiece v. Lattimore, 501

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Here, Dr. Wilson, who prepared the autopsy reports, testified at trial and was subject
to cross-examination by the defense. Dr. Wilson explained that she and Dr. Sung automatically
changed the cause of death on the autopsy reports and death certificates from accident to homicide
after learning from police that the fire was an arson. As noted by the Michigan Court of Appeals,
there was no indication that Dr. Sung had conducted any independent review of the case or formed
an independent opinion as to the cause of death. Counsel’s failure to make a frivolous or meritless
objection does not constitute ineffective assistance of counsel. See Smith v. Bradshaw, 591 F.3d
517, 523 (6th Cir. 2010); O’Hara v. Brigano, 499 F.3d 492, 506 (6th Cir. 2007); Chegwidden v.
Kapture, 92 F. App’x 309, 311 (6th Cir. 2004); Harris v. United States, 204 F.3d 681, 683 (6th Cir.
2000). The lack of an objection also was reasonable trial strategy, as requiring Dr. Sung to appear
in court and testify regarding the supplemental death certificate would have drawn additional
attention to the fact that the cause of death was changed to homicide.
Petitioner also cannot show that he was prejudiced by counsel’s failure to raise an
objection. Dr. Wilson’s testimony regarding the supplemental death certificates was cumulative of
her testimony regarding the autopsy reports. Furthermore, Petitioner does not dispute that the
victims died as a result of the fire. The issue at trial was whether Petitioner set the fire that killed
them. As outlined by the Michigan Court of Appeals, the prosecutor presented more than ample
evidence of Petitioner’s guilt. 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

F. App’x 634, 636 (9th Cir. 2012) (same); but see United States v. Ignasiak, 667 F.3d 1217, 1229-233 (11th Cir. 2012)
(concluding that under Crawford, Melendez-Diaz, and Bullcoming autopsy reports from Florida’s Medical Examiners
Commission, part of the Department of Law Enforcement, were testimonial). In the absence of clearly established
Supreme Court precedent that the death certificates were testimonial, the admission of Dr. Wilson’s testimony regarding
the death certificates or the death certificates themselves does not implicate the Confrontation Clause.

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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). Petitioner does not dispute the court of
appeals’ factual findings. In light of those facts, there is no reasonable probability that the verdict
would have been different had the supplemental autopsy reports been excluded. Accordingly, the
decision of the Michigan Court of Appeals was not an unreasonable application of Strickland.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 because it fails to raise a meritorious federal claim.
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). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination
that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly
unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court has already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d 44, 46 (2d Cir.
1989) (it was “intrinsically contradictory” to grant a certificate when habeas action does not warrant
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service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing
certificate would be inconsistent with a summary dismissal).
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 dismissal
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:

January 30, 2017

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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