Lay #449238 v. Skipper

Filing 19

OPINION AND ORDER APPROVING REPORT AND RECOMMENDATION 17 as supplemented by this Order, ADOPTED as the Opinion of this Court; Petitioner's Objections 18 are DENIED; Petitioner's habeas corpus petition is DENIED; certificate of appealability is DENIED; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______

ANTONIO LAY,
Petitioner,

Case No. 1:18-cv-666

v.

Honorable Janet T. Neff

MELINDA BRAMAN,
Respondent.

____________________________/
OPINION AND ORDER
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.
The matter was referred to the Magistrate Judge, who issued a Report and Recommendation
(R&R), (ECF No. 17), recommending that the Court deny the petition. The matter is presently
before the Court on Petitioner’s objections to the Report and Recommendation. (ECF No. 18.)
The petition presented eight issues for review, and the objections challenge the
Magistrate Judge’s analysis of all of them. In accordance with 28 U.S.C. § 636(b)(1) and Fed. R.
Civ. P. 72(b)(3), the Court has reviewed de novo those portions of the Report and Recommendation
to which Petitioner objected. The Court denies the objections and issues this opinion and order.
The Court will also issue a judgment in this § 2254 proceeding. See Gillis v. United States, 729
F.3d 641, 643 (6th Cir. 2013) (requiring a separate judgment in habeas proceedings).
Discussion
Petitioner Antonio Lay is incarcerated with the Michigan Department of
Corrections at the Richard A. Handlon Correctional Facility (MTU) in Ionia, Ionia County,
Michigan. In 2015, a jury of the Kent County Circuit Court convicted Petitioner of: assault with

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intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84; assault with intent
to rob while armed, Mich. Comp. Laws § 750.89; possession of firearms by a felon, Mich. Comp.
Laws § 750.224f; and possession of a firearm during the commission of a felony (felony-firearm),
Mich. Comp. Laws § 750.227b. On October 22, 2015, the trial court sentenced Petitioner as a
habitual offender to concurrent term of imprisonment of 8 to 20 years for assault with intent to do
great bodily harm, 35 to 90 years for assault with intent to rob, and 4 to 10 years for being a felon
in possession of a firearm. The court ordered Petitioner to serve those sentences consecutively to
a sentence of two years for the felony-firearm conviction.
Petitioner appealed the judgment to the Michigan Court of Appeals and the
Michigan Supreme Court. Those courts affirmed the judgment and/or denied leave to appeal on
August 1, 2017, and May 1, 2018, respectively. The Michigan Court of Appeals set forth the
essential facts of the case as follows:
Late in the evening on November 7, 2014, the victim went to Gardella’s bar in
downtown Grand Rapids. While there, the victim approached a man, later
identified as Tavis Miller, and asked him if he had any cocaine to sell. Miller asked
defendant, who said that he did have some in a car.
The victim left Gardella’s with Miller and defendant, and they walked over to the
car in question. When they got to the car, the victim sat in the backseat, Miller sat
in the front passenger seat, and defendant sat in the driver’s seat. The victim started
counting his money. Defendant asked Miller to open the glovebox and get him “the
stuff.” Miller opened the glovebox and saw a gun inside. Miller “froze” when he
saw the gun. Defendant reached over to the glovebox and grabbed the gun.
Defendant pointed the gun at the victim’s face and demanded that the victim hand
over his money. The victim opened the car door to escape, and defendant shot him.
Defendant then drove off. The victim was able to identify Miller. After police
arrested Miller, he identified defendant.
(Mich. Ct. App. Op., ECF No. 10-11, PageID.367.)
Petitioner asserts the following grounds for relief in this action:
I.

Evidence of a prior felonious assault by the Petitioner was more prejudicial
than probative and thus was the Petitioner denied his constitutional right to
a fair trial.
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II.

The testimony of Officer Timothy DeVries concerning the location of
Petitioner’s cell phone was inadmissible under MRE 702 and the Petitioner
as a result was denied his constitutional right to a fair trial.

III.

The trial court erred in failing to include among the jury instructions the
standard undisputed accomplice instruction.

IV.

The Petitioner was denied his state and federal constitutional right to the
effective assistance of counsel because trial counsel failed to request the
standard undisputed accomplice instructions and failed to object to the cell
phone tracking testimony of Officer Timothy DeVries.

V.

Where the prosecution’s case relied solely on witness testimony, trial
counsel’s wholesale failure to subject the prosecution’s case to meaningful
adversarial testing by failing to conduct any pretrial investigative interviews
of any of the prosecution’s witness[es] constructively deprived Petitioner of
his Sixth Amendment right to counsel.

VI.

Reversal is required where the trial court instructed the jury that they could
“find the Petitioner guilty” once they decided “the prosecutor has proven
each element of those crimes,” because this instruction did not convey to
the jury that the prosecutor had to prove each element of the crimes beyond
a reasonable doubt.

VII.

Petitioner was deprived of the right to the effective assistance of counsel
when counsel failed to move to exclude a surprise adversarial witness, Steve
Schable, who should have been barred from testifying because he was never
endorsed on the prosecution’s witness list as a witness intended to be called
at trial and regarding whom no motion for leave to add additional witness
was ever made or granted, with the resultant prejudice that counsel did not
have an opportunity to investigate and interview this witness and was
wholly ill-equipped to effectively and meaningfully challenge the witness’s
damaging testimony.

VIII.

Where identity of the perpe[]trator was an essential element and a question
of fact for the jury to determine, the trial court judge invaded the province
of the jury and pierced the veil of judicial impartiality by ordering record
confirmation of prosecution witnesses’ in-court identification when it is
strictly up to the jury to determine who was pointed to and who was
identified.

(Pet., ECF No. 1, PageID.10-11.)1

1

Petitioner’s present incarceration is not premised solely on his convictions in the Kent County Circuit Court. Almost
immediately after Petitioner was sentenced as described above, he was tried in the Genesee County Circuit Court on
charges of first-degree home invasion, armed robbery, felon-in-possession of a firearm, and felony-firearm. He was
found guilty and sentenced. He is serving the consecutive string of sentences from that proceeding concurrently with

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I.

404(b) evidence (habeas ground I)
Petitioner argued that it was unduly prejudicial for the trial court to admit testimony

from his girlfriend’s mother regarding an incident where Petitioner hit her with a black handgun.
The witness testified that a handgun that was introduced into evidence as the weapon used to shoot
the victim looked like the gun Petitioner had used to hit her. Petitioner argued that the evidence
was too prejudicial to be admitted under Michigan Rule of Evidence 404(b). The Michigan Court
of Appeal rejected the claim, not simply because the evidence was admissible under Rule 404(b),
but because the evidence was admissible under Rule 401 directly relevant to Petitioner’s guilt
because it was of consequence to determining whether Petitioner possessed the handgun used to
shoot the victim.
The Magistrate Judge determined that whether or not the evidence was admissible
under the Michigan Rules of Evidence was an issue not cognizable on habeas review. The
Magistrate Judge explained that, for the admission of evidence to rise to the level of a due process
violation cognizable on habeas review, Petitioner would have to show that the state court’s
admission of the evidence was in conflict with a decision of the Supreme Court establishing a due
process violation based upon the admission of the specific kind of evidence at issue.

his consecutive string of sentences from the Kent County Circuit Court proceeding.
state.mi.us/otis2/otis2profile.aspx?mdocNumber=449238 (visited Sept. 7, 2021).

See https://mdocweb.

Petitioner pursued the appeals from both judgments in parallel. In both appeals, Petitioner substituted out his original
appointed appellate counsel for retained counsel. In both appeals, Petitioner retained the same new appellate counsel.
In both cases, new appellate counsel filed a supplemental brief. And in both cases, new appellate counsel raised the
issues he raises here as habeas grounds V, VI, VII, and VIII.
Petitioner filed his habeas corpus petitions in both cases in the United States District Court for the Eastern District of
Michigan at the same time. That court transferred the petition relating to the Kent County Circuit Court judgment
here, where venue was proper. The petition challenging the Genesee County Circuit Court judgment remained in the
Eastern District, because venue was proper in that court. The Eastern District court denied the Genesee County habeas
petition by opinion and judgment entered February 27, 2020. Lay v. Skipper, No. 2:28-cv-11788 (E.D. Mich. Feb. 27,
2020). Because Petitioner raised several of the exact same issues in both courts, the Eastern District court’s resolution
of those issues is particularly instructive.

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Petitioner objects to the Magistrate Judge’s determination because there are
Supreme Court decisions relating to Rule 404(b) evidence and “a plethora of cases, both state and
federal, where relief has been granted for the erroneous admission of such evidence.” (Pet’r’s
Obj., ECF No. 18, PageID.828.) Petitioner’s objection does not address the standard identified by
the Magistrate Judge. Petitioner must show that there is Supreme Court authority concluding that
the admission of 404(b) evidence violates the Due Process Clause. Authority from other courts
does not suffice. Authority from the Supreme Court considering admissibility under the Federal
Rules of Evidence is not enough. Moreover, Petitioner’s initial argument, and his objection,
completely miss the point that the court of appeals concluded such evidence was admissible under
Rule 401 because it was directly relevant to facts at issue in Petitioner’s prosecution. Petitioner
offers no authority, much less clearly established federal law, to show that the admission of
relevant evidence violates the federal constitution simply because that evidence is prejudicial.
Petitioner’s objection is overruled.
II.

Expert qualification (habeas grounds II and IV)
Detective DeVries was qualified as an expert in forensic cellular telephone analysis

and testified regarding the location of Petitioner’s cellular telephone based on its use near the time
of the crime. The Michigan Court of Appeals upheld the admission of Detective DeVries’s expert
testimony under Michigan Court Rule 702. The Magistrate Judge concluded that Petitioner’s
habeas claim challenging the admission of Detective DeVries’s expert testimony was procedurally
defaulted because Petitioner failed to object to the detective’s qualifications and that the claim
lacked merit. Petitioner objects to the Magistrate Judge’s resolution of the claim on both grounds.
Petitioner claims that he established cause for the failure to object when he argued
that counsel rendered ineffective assistance for failing to object to the detective’s qualifications.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-prong test
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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. Id. at 687. 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 Michigan Court of Appeals determined that Detective DeVries was qualified
under Rule 702. That conclusion binds this Court. As the Supreme Court explained in Estelle v.
McGuire, 502 U.S. 62 (1991), “it is not the province of a federal habeas court to re-examine statecourt determinations on state-law questions.” Id. at 67–68. The decision of the state courts on a
state-law issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983);
see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court's
interpretation of state law, including one announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus.”). The court of appeals’ determination that the trial
court properly admitted Detective DeVries’s testimony under Rule 702 is, therefore, axiomatically
correct on habeas review.
Because the trial court acted properly in admitting the expert testimony, the
proposed objection would have been meritless.

“Omitting meritless arguments is neither

professionally unreasonable nor prejudicial.” Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013).
Accordingly, any claim that counsel rendered ineffective assistance because he did not object, as

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urged by Petitioner, fails and Petitioner has failed to establish cause for his procedural default.
Thus, habeas review of the issue is barred.
The result would be no different if the Court addressed the issue on the merits.
Resolution of the issue follows the same analytical path as the Court’s resolution of Petitioner’s
Rule 404(b) argument. Whether the state court complied with Michigan Rule of Evidence 702 is
purely a state issue not cognizable on habeas review. Although it is conceptually possible that the
admission of evidence, either consistent with or contrary to Rule 702, might run afoul of due
process, Petitioner can only prevail if he can point to Supreme Court authority establishing that
admission (or exclusion) of the specific type of evidence at issue implicates due process. Petitioner
points to Supreme Court and lower court authority regarding application of Federal Rule of
Evidence 702, but he does not identify any clearly established federal law holding that the opinion
of an “unqualified” expert violates due process. Accordingly, the Court overrules Petitioner’s
objection regarding the merits of this issue as well.
III.

Accomplice jury instruction (habeas grounds III and IV)
Petitioner next complains that the trial court did not use a model Michigan criminal

jury instruction to advise the jury to consider Tavis Miller’s testimony with some skepticism
because, according to Petitioner, Miller was an accomplice. The standard jury instruction reads as
follows:
(1)
You should examine an accomplice’s testimony closely and be very careful
about accepting it.
(2)
You may think about whether the accomplice’s testimony is supported by
other evidence, because then it may be more reliable. However, there is nothing
wrong with the prosecutor’s using an accomplice as a witness. You may convict
the defendant based only on an accomplice’s testimony if you believe the testimony
and it proves the defendant’s guilt beyond a reasonable doubt.
(3)
When you decide whether you believe an accomplice, consider the
following:
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(a)
Was the accomplice’s testimony falsely slanted to make the
defendant seem guilty because of the accomplice’s own interests, biases,
or for some other reason?
(b)
Has the accomplice been offered a reward or been promised
anything that might lead [him / her] to give false testimony? [State what
the evidence has shown. Enumerate or define reward.]
(c)
Has the accomplice been promised that [he / she] will not be
prosecuted, or promised a lighter sentence or allowed to plead guilty to a
less serious charge? If so, could this have influenced [his / her] testimony?
[(d)

Does the accomplice have a criminal record?]

(4)
In general, you should consider an accomplice’s testimony more cautiously
than you would that of an ordinary witness. You should be sure you have examined
it closely before you base a conviction on it.
(ECF No. 10-11, PageID.371–372.)
Neither party requested the instruction. Although the court did not read the
accomplice instruction, it did caution the jurors about Miller’s testimony:
You have heard testimony from a witness, Tavis Miller. That witness made [] an
agreement with the prosecutor about charges against him in exchange for his
testimony at this trial. You are to consider this evidence only as it relates to his
credibility, as it may tend to show the witness’ bias or self-interest.
(Trial Tr. IV, ECF No. 10-8, PageID.346.) The Michigan Court Rules require the court to read a
model instruction if it is pertinent and it is requested by a party. Mich. Ct. R. 2.512(D)(2). But
where a defendant fails to request an instruction, the failure of the court to read that instruction is
not a ground to set aside the verdict. Mich. Comp. Laws § 768.29. The court of appeals concluded
it was not error under state law for the trial court to not read the accomplice instruction. The court
of appeals’ determination that the instruction was not required by state law is binding on this Court.
See Wainwright, 464 U.S. at 84; Bradshaw, 546 U.S. at 76. Of course, whether or not the
instruction was required under state law presents an issue that is not cognizable on habeas review.

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Petitioner contends that the accomplice instruction issue is properly before the
Court on habeas review for two reasons: first, failure to read the accomplice instruction violated
Petitioner’s due process right to a fair trial; and second, counsel rendered ineffective assistance
because he failed to request the accomplice instruction. The court of appeals opinion addresses
those issues as well.
To establish a due process violation based on instructional error, Petitioner must
show that the error infected the entire trial with unfairness. 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). To assess the extent of the
“infection,” courts have looked to how the instruction may have impacted fundamental rights, such
as: the prosecution’s burden to prove guilt beyond a reasonable doubt, see e.g., Henderson v.
Kibbe, 431 U.S. 145, 155 (1977) (court considered whether failure to read an instruction regarding
a particular element relieved the prosecutor of the burden of proof), and Sanders v. Freeman, 221
F.3d 846, 860 (6th Cir. 2000) (same); the presumption of innocence, see, e.g., Cupp v. Naughten,
414 U.S. 141, 147–148 (1973) (court considered whether an instruction regarding a presumption
of truthfulness shifted the burden of proof to the defendant and destroyed the presumption of
innocence); or notice of the charges, see, e.g., Rashad v. Lafler, 675 F.3d 564, 569 (6th Cir. 2012)
(court considered whether lesser-included offense instructions or aider and abettor instructions
interfered with the defendant’s right to notice). No such fundamental rights were at issue here.
Indeed, the Sixth Circuit has determined that “neither the United States Supreme Court nor [the
Sixth Circuit Court of Appeals] has ‘requir[ed] accomplice instructions as a general matter.’”
Young v. Trombley, 435 F. App’x 499, 503 (6th Cir. 2011) (quoting Scott v. Mitchell, 209 F.3d
854, 883 (6th Cir. 2000)).

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The appellate court determined that Miller’s status as an accomplice and the
credibility problems attendant to that status were made known to the jury through crossexamination and recross-examination.

The court of appeals concluded the absence of the

instruction, if there was error, did not affect the fairness of the proceedings because the jury was
made aware of the relevant facts and the trial court’s instruction invited the jury to carefully
evaluate Miller’s credibility in light of the benefits he received from his plea bargain.
The court of appeals’ analysis is well-grounded in the record. The jury was
appropriately instructed with regard to the jurors’ general obligation to assess the credibility of
witnesses and they were informed of specific reasons to call into question Miller’s credibility by
the trial court and defense counsel. Moreover, Petitioner has failed to identify any clearly
established federal law that constitutionally requires reading of an accomplice instruction such as
Michigan model instruction. Accordingly, Petitioner has failed to show that the court of appeals
resolution of this claim is contrary to, or an unreasonable application of clearly established federal
law. Petitioner’s objection with regard to the Magistrate Judge’s resolution on this issue is
rejected.
Petitioner additionally contends that his counsel rendered ineffective assistance for
failing to request the instruction or object to its absence. The court of appeals concluded those
“failures” did not fall below an objective standard of reasonable performance nor were they
prejudicial. Whether or not counsel should have requested the instruction, for the reasons stated
above, the court of appeals’ determination that a different result would not have been probable
finds ample support in the record. Petitioner suggests that the instruction might have turned the
tide in his favor. Perhaps Petitioner is correct, but in light of all the testimony, argument, and other
instructions regarding credibility, Petitioner has not, and cannot, show that a different result would

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have been probable if his counsel had requested the accomplice instruction.

Accordingly,

Petitioner’s objection to the Magistrate Judge’s resolution of this ineffective assistance claim is
denied.
IV.

Counsel’s failure to interview witnesses (habeas ground V)
Petitioner provides a wealth of case authority that where defense counsel has failed

to investigate his or her client’s case and does not bother to interview witnesses or otherwise
prepare for trial, that counsel has rendered ineffective assistance. Indeed, Petitioner argues that
counsel’s failure to prepare was so complete that Petitioner was effectively denied counsel such
that his conviction must be reversed “without any specific showing of prejudice to defendant . . . .”
United States v. Cronic, 466 U.S. 648, 659 n.25 (1984). The authority Petitioner cites is
compelling; he simply does not provide any factual support for his claims. The court of appeals
rejected his claim:
Defendant asserts that counsel was ineffective by failing to investigate the case and
interview witnesses. However, defendant has not provided any evidence to support
his assertions.
(Mich. Ct. App. Op., ECF No. 10-11, PageID.375.)
Petitioner, with the assistance of appellate counsel, sought a remand to the trial
court for an evidentiary hearing regarding counsel’s failures. Appellate counsel also asked the
court of appeals to expand the record to include counsel’s affidavit and the transcript of a telephone
conversation appellate counsel had with trial counsel. Although the court of appeals denied the
motion to remand and the motion to expand the record, the affidavit and transcript are available
for review, even if they are not part of the trial court record. (Tr., ECF No. 10-11, PageID.537–
543; Aff., ECF No. 10-11, PageID.545–546.)
The transcript does not support Petitioner’s extreme claim. To the contrary,
appellate counsel tried repeatedly to get trial counsel to say he had not interviewed any witnesses,
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but trial counsel indicated that, though he had declined to interview the police witnesses or the
victim, he had tried to interview other witnesses, but only one witness would cooperate. The best
evidence in the state court record indicates that counsel interviewed the only witness that would
cooperate. In light of the documents Petitioner had in hand, his characterization of trial counsel’s
efforts borders on frivolous.
The court of appeals’ determination that there was no record evidence to support
this claim is amply supported by the state court record. The appellate court’s further determination
that Petitioner had failed to show his counsel was ineffective because he was unprepared is neither
contrary to, nor an unreasonable application of, clearly established federal law. Accordingly,
Petitioner’s objection to the Magistrate Judge’s rejection of this claim is denied.
V.

Failure to object to a surprise witness (habeas ground VII)
Petitioner next argues that his counsel should have objected to the testimony of

Steven Schabel. Mr. Schabel was one of the officers present when Petitioner was arrested on
November 25, 2014. He was called to testify regarding Petitioner’s location in the car and the
location of a .40 caliber handgun in the car. According to Petitioner, Mr. Schabel was not included
in the witness list. The prosecutor listed another officer who was present at the arrest. In the
appeal briefs, the prosecutor reported, on information and belief, that the other officer was on
vacation at the time of the trial and Mr. Schabel was substituted. (Prosecutor’s Appeal Br., ECF
No. 10-11, PageID.519.)2 The fact that an officer involved in the arrest would be called was no

2

Mr. Schabel was also substituted in the Genesee County prosecution. Because that trial occurred two months after
the Kent County trial, Mr. Schabel was probably less of a surprise in that case. The record in the Genesee County
case disclosed that the Genesee County prosecutor used Mr. Schabel instead of another officer because “Schabel was
in a better position to testify as to the circumstances of the arrest and search of the vehicle . . . .” Lay v. Skipper, No.
2:18-cv-11788 (E.D. Mich.) (Op., ECF No. 11, PageID.1810.)

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surprise. The prosecutor specifically sought permission to present the testimony before the trial
because it carried some hint of Rule 404(b) significance.
The court of appeals resolved this ineffective assistance claim on the prejudice
prong of Strickland. The appellate court found that other witnesses, including Tavis Miller, tied
Petitioner to the .40 caliber handgun that shot the victim, and Petitioner’s girlfriend’s mother also
linked Petitioner to a handgun that looked like the gun taken from Petitioner when he was arrested
on November 25, 2014. Under those circumstances, the court concluded that Petitioner had failed
to show that any failure to object was prejudicial. The Magistrate Judge found the appellate court’s
analysis to be entirely consistent with Strickland.
Petitioner objects to the Magistrate Judge’s determination because the failure to
disclose the witness was “clearly unfair gamesmanship . . . .” (Pet’r’s Obj., ECF No. 18,
PageID.832.) Petitioner’s objection is directed at the first prong of Strickland. Neither the
Michigan Court of Appeals nor the Magistrate Judge rejected the claim on the first prong. They
relied on the second prong. Petitioner raises no objection with regard to the determination of
prejudice. Accordingly, his objection is denied.
VI.

Jury instruction regarding the burden of proof (habeas ground VI)
Petitioner claims that the trial court failed to instruct the jury that the jurors had to

find Petitioner guilty of all elements of the charged offenses beyond a reasonable doubt. This
entire argument is founded upon a question the trial judge posed to the jurors during voir dire. The
court was not instructing the jurors regarding the elements of the offenses or the burden of proof,
he was simply asking the jurors whether they might have some objection to making a decision
generally. (Trial Tr. I, ECF No. 10-5, PageID.200.) For Petitioner to suggest that this question
was the court’s instruction regarding the burden of proof is disingenuous at best.

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The first day of trial was consumed by pretrial motions and jury selection. The trial
court gave preliminary instructions to the jury on the second day of trial. The court gave exactly
the instructions Petitioner urges with regard to the presumption of innocence and the prosecutor’s
burden of proof. (Trial Tr. II, ECF No. 10-6, PageID.228.) The jurors were given a written set of
those instructions to use during the trial. (Id.) Then, on the fourth day of trial, after closing
argument, the court instructed the jurors again. The court again read exactly the instructions that
Petitioner contends were required. (Trial Tr. IV, ECF No. 10-8, PageID.346–347.)
Petitioner’s argument that the court’s question regarding the prospective jurors’
ability to decide guilt was intended to convey the requisite burden of proof is frivolous.3 Moreover,
even if there is a remote chance that a prospective juror might have latched on to that question as
spelling out the prosecutor’s burden of proof, the court’s subsequent, specific instructions would
have disabused the juror of that notion. The court of appeals reached that conclusion: “[O]ur
review of the record reveals that the trial court’s later instructions did properly convey to the jury
that the prosecutor had to prove each of the elements beyond a reasonable doubt.” (Mich. Ct. App.
Op., ECF No. 10-11, PageID.376.) That conclusion is unassailable.
The court of appeals also concluded that the issue was procedurally defaulted.
Petitioner never objected to the “instruction;” therefore, he waived the issue. (Id., PageID.375–
376.) The Magistrate concluded that Petitioner had failed to establish cause for the lack of
objection, or any resulting prejudice. That conclusion too, is amply supported by the record and
entirely consistent with clearly established federal law. Counsel’s failure to pose the meritless
objection that Petitioner raised in the court of appeals, and now raises in this Court, was neither
3

The Eastern District of Michigan court reached a similar conclusion: “Petitioner’s complaint requires an overly
constrained interpretation of the record. . . . There is no reasonable probability that the jury understood the burden of
proof to be less than constitutionally required.” Lay v. Skipper, No. 2:18-cv-11788 (E.D. Mich.) (Op., ECF No. 11,
PageID.1812–1813.)

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professionally unreasonable nor prejudicial. Coley, 706 F.3d at 752. Petitioner’s pro forma
objection to the Magistrate Judge’s determination is denied.
VII.

Trial court’s acknowledgment that a witness identified Petitioner (habeas ground
VIII)
Finally, Petitioner complains that the trial judge “pierced the veil of impartiality”

when he twice acknowledged for the record that the person a particular witness had identified by
the color of the person’s clothing was Petitioner.4 Petitioner does not contend that the trial judge
got it wrong, or that some other person was dressed as stated by the witnesses—he simply argues
that only the jurors can decide whether the witness meant to describe Petitioner.
The court of appeals rejected the claim because “[n]othing in the court’s
conduct . . . implicates judicial partiality.” (Mich. Ct. App. Op., ECF No. 10-11, PageID.376.)
The Magistrate Judge concluded that Petitioner had failed to show that the state appellate court’s
rejection of the claim was contrary to, or an unreasonable application of, clearly established federal
law. The United States District Court for the Eastern District of Michigan reached the same
conclusion and stated further that “there is no clearly established federal law as determined by the
Supreme Court that supports Lay’s argument.” Lay v. Skipper, No. 2:18-cv-11788 (E.D. Mich.)
(Op., ECF No. 11, PageID.1811.) “Under [the] AEDPA, if there is no ‘clearly established Federal
law, as determined by the Supreme Court’ that supports a habeas petitioner’s legal argument, the
argument must fail.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005). Accordingly,
Petitioner’s objection to the Magistrate Judge’s decision on this issue is denied.

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The witnesses were Tavis Miller and Petitioner’s girlfriend’s mother. The judge’s allegedly offensive
acknowledgment of their identifications of Petitioner appear at Trial Tr. II, ECF No. 10-6, PageID.277 and Trial Tr.
III, ECF No. 10-7, PageID.296, respectively.

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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, 467 (6th Cir. 2001) (per curiam). 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, I have
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 of reason 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 would be debatable or wrong. Therefore, the Court will deny Petitioner a
certificate of appealability.
Moreover, although the Court concludes that Petitioner has failed to demonstrate
that he is in custody in violation of the constitution and has failed to make a substantial showing
of a denial of a constitutional right—and the Court has noted that many of the issues Petitioner has
raised are essentially frivolous—the Court does not find that any and every issue Petitioner might
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raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962).
Therefore, the Court does not certify that an appeal could not be taken in good faith.
Accordingly,
IT IS ORDERED that the Magistrate Judge’s Report and Recommendation issued
April 19, 2021 (ECF No. 17) is APPROVED and, as supplemented by this Order, ADOPTED as
the Opinion of this Court, and Petitioner’s objections (ECF No. 18) are DENIED.
IT IS FURTHER ORDERED that Petitioner’s habeas corpus petition is
DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
A separate judgment will issue.

Dated:

September 9, 2021

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

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