Wood #412938 v. Schiebner

Filing 16

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
CHRISTOPHER CHARLES EUBANKS
WOOD,
Petitioner,

Case No. 1:23-cv-1349
Honorable Paul L. Maloney

v.
JAMES SCHIEBNER,
Respondent.

____________________________/
OPINION
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.
Petitioner Christopher Charles Eubanks Wood is incarcerated with the Michigan Department of
Corrections at the Muskegon Correctional Facility (MCF) in Muskegon, Muskegon County,
Michigan. Following a jury trial in the Kent County Circuit Court, Petitioner was convicted of
two counts of armed robbery, in violation of Mich. Comp. Laws § 750.529. On February 27, 2018,
the court sentenced Petitioner as a fourth-offense habitual offender, Mich. Comp. Laws § 769.12,
to concurrent terms of 30 to 90 years of incarceration.
On December 26, 2023, Petitioner filed his habeas corpus petition, raising the following
eleven grounds for relief:
I.

Petitioner . . . is currently being unlawfully detained and restrained of his
liberty in violation of both State and Federal Constitutions.

II.

The Michigan courts erroneously relied on impermissible identification
procedure(s), resulting in a denial of substantial rights.

III.

Petitioner[’s] 5th, 6th, and 14th Amendment [rights] were violated by the
trial court’s abuse of discretion in failing to suppress the constitutionally
impermissible identification, photos, and/or any fruits thereof.

IV.

[Ineffective assistance of counsel] based upon a failure to object to the
admission of DNA lab reports, and a violation of Petitioner’s right of
confrontation.

V.

Petitioner was deprived of effective assistance of counsel by counsel’s
failure to object to the admission of the known sample of Petitioner’s blood,
under [the] fruits of the poisonous tree doctrine, and also in violation of
[Petitioner’s] 4th Amendment rights.

VI.

Defense counsel was ineffective due to his failure(s) to conduct any pretrial
preparatory investigation(s) of the State’s witnesses, thus violating
Petitioner[’s] 6th Amendment right to trial counsel for the failure(s) to
investigate the witnesses in this matter, resulting in the prejudice that
defense counsel was unable to subject the prosecution’s case to any true
meaningful adversarial testing.

VII.

The jury verdict form in both cases was constitutionally deficient, and has
effectively denied [Petitioner his] right to a trial by jury, which requires a
reversal of his conviction(s).

VIII.

Petitioner was denied the effective assistance of counsel on direct appeal.

IX.

The prosecutor obtained identification of [Petitioner] as the direct result of
police misconduct, in direct violation(s) of [Petitioner’s] Sixth Amendment
rights to a fair trial, and in direct contrast to the United States Supreme Court
precedent found in Perry v. New Hampshire, 565 U.S. 228 (2012).

X.

The prosecutor’s multiple instances of misconduct violated [Petitioner’s]
5th, 6th, and 14th Amendment rights to due process of law, and a fair trial.

XI.

The cumulative effect of the foregoing errors have denied [Petitioner] a fair
trial.

(Pet., ECF No. 1, PageID.10–64 (some capitalization and punctuation corrected).) Respondent
contends that Petitioner’s § 2254 petition should be denied as meritless.1 (ECF No. 11.) For the

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Respondent also argues that several of Petitioner’s grounds for relief are procedurally defaulted.
(ECF No. 11.) Respondent recognizes, however, that a habeas corpus petition “may be denied on
the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the
courts of the State.” See 28 U.S.C. § 2254(b)(2). Furthermore, the Supreme Court has held that
federal courts are not required to address a procedural default issue before deciding against the
petitioner on the merits. Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (“Judicial economy might
counsel giving the [other] question priority, for example, if it were easily resolvable against the
habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law.”);
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following reasons, the Court concludes that Petitioner has failed to set forth a meritorious federal
ground for habeas relief and will, therefore, deny his petition for writ of habeas corpus.
Discussion
I.

Factual Allegations and Procedural History
The Michigan Court of Appeals described the events underlying Petitioner’s convictions

as follows:
The prosecutor charged [Petitioner] with two separate robberies. In both instances,
the robber entered the store, walked to the drink cooler, chose a drink, and walked
to the register to purchase the drink. After the transaction was complete, the robber
asked the clerk to make change for a dollar. When the clerk opened the drawer to
make change, the robber either stated or implied that he was armed and attempted
to take cash out of the open drawer.
During the Walgreens robbery, when the clerk opened the cash drawer, the robber
stated that he had a gun and reached into the drawer. The clerk stepped back, put
her hands up in the air, and let the robber take all the money out of the cash register.
Four days later, the clerk watched the surveillance video of the robbery and she
identified [Petitioner] as the robber. A police officer also testified that [Petitioner]
was the robber shown on the surveillance video, and the prosecutor played the video
for the jury. In addition, police witnesses testified that [Petitioner’s] DNA was
found on a hat worn by the Walgreens robber.
During the Marathon robbery, the clerk thought the robber was armed because of
the way he was lifting up his shirt. The robber put the clerk in a chokehold while
demanding money. The clerk refused to comply, locked the cash drawer, and
pushed the robber out. As the robber left the gas station, he threatened that he was
going to come back for the clerk. Shortly after the robbery, the owner of the gas
station showed the clerk the surveillance video of the robbery. The Marathon clerk
identified [Petitioner] as the robber.
The surveillance video of the Marathon robbery was also shown on television, and
one of [Petitioner’s] federal probation officers recognized [Petitioner] from the
video. She contacted local police and identified [Petitioner] as the robber. The
see also Overton v. Macauley, 822 F. App’x 341, 345 (6th Cir. 2020) (“Although procedural
default often appears as a preliminary question, we may decide the merits first.”); Hudson v. Jones,
351 F.3d 212, 215–16 (6th Cir. 2003) (citing Lambrix, 520 U.S. at 525; Nobles v. Johnson, 127
F.3d 409, 423–24 (5th Cir. 1997); 28 U.S.C. § 2254(b)(2)). Here, rather than conduct a lengthy
inquiry into exhaustion and procedural default, judicial economy favors proceeding directly to a
discussion of the merits of Petitioner’s claims.
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probation officer testified at trial that she recognized [Petitioner] by his profile and
a distinctive coat that he wore. Furthermore, a police witness testified that when he
arrested [Petitioner] the day after the Marathon robbery, [Petitioner] was wearing
“virtually the exact clothes depicted in the surveillance footage from the robbery.”
At trial, [Petitioner] challenged evidence of the Marathon clerk’s in-court
identification of him as the robber, arguing that before her testimony at the
preliminary examination, the prosecutor showed the clerk an impermissibly
suggestive photograph—in which [Petitioner] was wearing handcuffs—and that
this tainted the clerk’s in-court identification of [Petitioner]. The trial court held an
evidentiary hearing outside the presence of the jury regarding the photograph
shown to the clerk. The clerk’s testimony on this point is contradictory: the clerk
testified that defense counsel showed her a photo, then testified that the prosecutor
showed her a photo, then testified that she could not remember who showed her the
photo. At times, she stated that she saw one photo, and at other times, she stated
that she saw two photos. Outside the presence of the jury, however, the prosecutor
testified that he did not show the witness any photographs until cross-examination.
The trial court found the prosecutor’s testimony more credible than the clerk’s
testimony, found that the clerk’s in-court identification was not obtained through
unnecessarily suggestive means, and ruled that the clerk’s in-court identification of
[Petitioner] was admissible.
Aside from her testimony regarding the photograph shown to her at [Petitioner’s]
preliminary examination, the Marathon clerk testified that she had a good
opportunity to see [Petitioner] during the offense: in the well-lit gas station, she
watched him enter the store, walk to the drink coolers, take a drink, walk back to
the register, and begin the transaction. The clerk also had an opportunity to observe
[Petitioner] up close when he physically grabbed her and told her to give him
money from the cash drawer. Her in-court identification occurred less than one
month after the robbery, and she was able to provide a detailed description of the
robber that matched [Petitioner], which she did consistently throughout the
proceedings. The clerk neither identified anyone else as the robber, nor did she ever
express doubt that [Petitioner] was the robber; she testified that she was “100
percent sure” that [Petitioner] was the man who robbed her. Finally, the clerk
testified multiple times that her in-court testimony was uninfluenced by the
photograph she saw before the preliminary examination. The clerk stated
repeatedly that her identification was based on her independent recollection of the
robbery and her close encounter with the robber.
People v. Wood, No. 342900, 2019 WL 4389161, at *1–2 (Mich. Ct. App. Sept. 12, 2019).
Jury selection for Petitioner’s trial occurred on February 5, 2018. (Trial Tr. I, ECF No. 128.) Over the course of two days, the jury heard testimony from numerous witnesses, including law
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enforcement officers, the Marathon clerk, the Walgreen’s cashier, a forensic scientist with the
Michigan State Police, the prosecutor who had handled Petitioner’s preliminary examination, and
the mother of Petitioner’s children. (Trial Tr. II & III, ECF Nos. 12-9 and 12-10.) On February 8,
2018, after only a little over an hour of deliberation, the jury reached a guilty verdict. (Trial Tr.
IV, ECF No. 12-11, PageID.1201–1202.) Petitioner appeared before the trial court for sentencing
on February 27, 2018. (ECF No. 12-12.)
Petitioner, with the assistance of counsel, appealed his convictions and sentences to the
Michigan Court of Appeals, asserting the following claims for relief: (1) the Marathon clerk’s incourt identification should have been suppressed; (2) the jury was improperly shown a prejudicial
photograph of Petitioner in handcuffs and wearing similar clothing to what the robber was wearing
when he committed the Marathon robbery; (3) the trial court erred by conducting a joint trial for
both armed robbery charges; (4) the trial court erred by conducting a joint trial because evidence
of each robbery was inadmissible in the other case pursuant to Michigan Rule of Evidence 404(b);
and (5) counsel rendered ineffective assistance in numerous ways. See Wood, 2019 WL 4389161,
at *2–8. The court of appeals affirmed Petitioner’s convictions and sentences on September 12,
2019. Id. at *1. The Michigan Supreme Court denied Petitioner’s application for leave to appeal
on April 29, 2020. See People v. Wood, 941 N.W.2d 635 (2020).
On May 7, 2021, Petitioner returned to the trial court and filed a motion for relief from
judgment pursuant to Michigan Court Rule 6.500, asserting as his claims for relief the three claims
he now raises as habeas grounds VIII, IX, and X, as well as several ineffective assistance of counsel
claims and a cumulative error claim. (ECF No. 12-15.) The trial court denied Petitioner’s motion
in an opinion and order entered on February 7, 2022. (ECF No. 12-16.) The court of appeals and
supreme court denied Petitioner’s applications for leave to appeal on December 28, 2022, and
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October 31, 2023, respectively. (ECF No. 12-19, PageID.1722; ECF No. 12-20, PageID.1821.)
This § 2254 petition followed.
II.

AEDPA Standard
The AEDPA “prevent[s] 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). An application for writ of habeas corpus on behalf of a person who is incarcerated
pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on
the merits in state court unless the adjudication: “(1) resulted in a decision that was contrary to, or
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). “Under these rules, [a] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the
correctness of the state court’s decision.” Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 2020)
(internal quotation marks omitted) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). This
standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal
quotation marks omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme Court.
28 U.S.C. § 2254(d). In determining whether federal law is clearly established, the Court may not
consider the decisions of lower federal courts. Williams v. Taylor, 529 U.S. 362, 381–82 (2000);
Miller v. Straub, 299 F.3d 570, 578–79 (6th Cir. 2002). 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, 565 U.S. 34, 37–38 (2011). Thus, the inquiry is limited to
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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 state-court adjudication on the merits. Miller
v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).
A federal habeas court may issue the writ under the “contrary to” clause if the state court
applies a rule different from the governing law set forth in the Supreme Court’s cases, or if it
decides a case differently than the Supreme Court has done on a set of materially indistinguishable
facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405–06). “To satisfy this high bar, a
habeas petitioner is required to ‘show that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.’” Woods, 575
U.S. at 316 (quoting Harrington, 562 U.S. at 103).
Determining whether a rule application was unreasonable depends on the rule’s specificity.
Stermer, 959 F.3d at 721. “The more general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“[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. 415, 424 (2014) (internal
quotation marks omitted).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160
F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is
presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)
(en banc); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey v. Mitchell, 271 F.3d
652, 656 (6th Cir. 2001). This presumption of correctness is accorded to findings of state appellate
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courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546–547 (1981); Smith v.
Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).
Section 2254(d) limits the facts a court may consider on habeas review. The federal court
is not free to consider any possible factual source. The reviewing court “is limited to the record
that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563
U.S. 170, 180 (2011). “If a review of the state court record shows that additional fact-finding was
required under clearly established federal law or that the state court’s factual determination was
unreasonable, the requirements of § 2254(d) are satisfied and the federal court can review the
underlying claim on its merits. Stermer, 959 F.3d at 721 (citing, inter alia, Brumfield v. Cain, 576
U.S. 305 (2015), and Panetti v. Quarterman, 551 U.S. 930, 954 (2007)).
If the petitioner “satisfies the heightened requirements of § 2254(d), or if the petitioner’s
claim was never ‘adjudicated on the merits’ by a state court, 28 U.S.C. § 2254(d),”—for example,
if he procedurally defaulted the claim—“AEDPA deference no longer applies.” Stermer, 959 F.3d
at 721. Then, the petitioner’s claim is reviewed de novo. Id. (citing Maples v. Stegall, 340 F.3d
433, 436 (6th Cir. 2003)).
III.

Discussion
A.

Ground I—Bindover and Arraignment Issues/Actual Innocence

As his first ground for relief, Petitioner contends that he is “being unlawfully detained and
restrained of his liberty.” (Pet., ECF No. 1, PageID.10.) He also suggests that he was never
arraigned on an armed robbery charge because it was “an amendment of the unarmed robbery, on
which [Petitioner] was arraigned.” (Id., PageID.14.) Petitioner suggests that he never received
notice of the armed robbery charge, and that the trial court lacked subject-matter jurisdiction to

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proceed because he was not properly arraigned. (Id.) As part of this ground for relief, Petitioner
also asserts that he is actually innocent. (Id., PageID.11.)
1.

Bindover/Arraignment/Subject-Matter Jurisdiction

Petitioner raised his assertions regarding the bindover and lack of arraignment as part of
an ineffective assistance of counsel claim in his Rule 6.500 motion. The trial court rejected
Petitioner’s assertions, stating:
[Petitioner] first argues that his trial counsel was ineffective for failing to raise the
argument that [Petitioner] was never arraigned on the armed robbery charge in Case
No. 17-02032-FC. The armed robbery charge of Case No. 17-0232-FC was added
when [Petitioner] chose to run a preliminary examination on March 1, 2017. At that
examination, the district court Judge concluded[,] “I think there is sufficient
evidence to bind over Mr. Wood, based on probable cause” for both charges of Case
No. 17-02032-FC and Case No. 17-07323-FC. “In a criminal case, due process
generally requires reasonable notice of the charge and an opportunity to be heard.”
In re Oliver, 333 U.S. 257, 273 (1948). [Petitioner] was put on notice prior to or at
the preliminary examination of the addition of the charge of Case No. 17-0232 and
was given an opportunity to be heard at that time.
Moreover, the Michigan Supreme Court has held that “the presence of defense in
court through a trial of the cause upon the merits represented by counsel, who failed
to call attention to the omission of arraignment and plea, was a waiver of his right
thereto.” People v. Weeks, 165 Mich. 362, 364; 130 N.W. 697 (1911). The Weeks
Court also indicated that a failure to arraign is a defect that is “merely technical,
affecting no substantial right whatever” and that “[w]here the prisoner appears with
his own counsel, the omission formally to arraign and ask for a plea is immaterial
to his rights and may be deemed to be waived.” Id. at 365 (quotation marks and
citation omitted).
(ECF No. 12-16, PageID.1429 (parallel citations for In re Oliver omitted).)
The Fourteenth Amendment’s Due Process Clause mandates that whatever charging
method the state employs must give the criminal defendant fair notice of the charges against him
so as to provide him an adequate opportunity to prepare his defense. See Watson v. Jago, 558 F.2d
330, 338 (6th Cir. 1977). This requires that the offense be described with some precision and
certainty so as to apprise the accused of the crime with which he stands charged. Combs v.
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Tennessee, 530 F.2d 695, 698 (6th Cir. 1976). Such definiteness and certainty are required as will
enable a presumptively innocent man to prepare for trial. Id. “Beyond notice, a claimed deficiency
in a state criminal indictment is not cognizable on federal collateral review.” Roe v. Baker, 316
F.3d 557, 570 (6th Cir. 2002) (quoting Mira v. Marshall, 806 F.2d 636, 639 (6th Cir. 1986)). “An
indictment which fairly but imperfectly informs the accused of the offense for which he is to be
tried does not give rise to a constitutional issue cognizable in habeas proceedings.” Mira, 806 F.2d
at 639. In other words, as long as “sufficient notice of the charges is given in some . . . manner” so
that the accused may adequately prepare a defense, the Fourteenth Amendment’s Due Process
Clause is satisfied. Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984); Watson, 558 F.2d at 338.
Moreover, the determination of whether a particular state court is vested with jurisdiction
under state law and is the proper venue to hear a criminal case is a “function of the state courts,
not the federal judiciary.” Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976). Moreover, “a state
court’s interpretation of state jurisdictional issues conclusively establishes jurisdiction for
purposes of federal habeas review.” Strunk v. Martin, 27 F. App’x 473, 475 (6th Cir. 2001).
The Michigan Supreme Court has described the concept of subject matter jurisdiction as
follows: “Subject matter jurisdiction concerns a court’s abstract power to try a case of the kind or
character of the one pending and is not dependent on the particular facts of the case.” People v.
Lown, 794 N.W.2d 9, 23 (Mich. 2011) (internal quotation marks and emphasis omitted).
“Michigan circuit courts are court of general jurisdiction and unquestionably have jurisdiction over
felony cases.” Id.; see also Mich. Const. of 1963, art. 6, §§ 1 & 13; Mich. Comp. Laws §§ 600.151,
600.601, and 767.1. Any purported violation of these state jurisdictional laws does not provide a
basis for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).

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Additionally, with respect to Petitioner’s argument that he was not arraigned, thereby
violating due process, the Supreme Court has long held that due process “does not require the state
to adopt any particular form of procedure, so long as it appears that the accused has had sufficient
notice of the accusation and an adequate opportunity to defend himself.” Garland v. Washington,
232 U.S. 642, 645 (1914). Thus, under this test, “it cannot for a moment be maintained that the
want of formal arraignment deprived the accused of any substantial right, or in any wise changed
the course of trial to his disadvantage.” Id.
The record reflects that when Petitioner’s preliminary examination began on February 15,
2017, the prosecutor informed the trial court that “[t]he People do intend to, if the proofs do support
the charge, move for bind over on an armed robbery life offense count because of gesture—
gestures that were made during the course of the robbery that suggested to the victim that he was
in fact armed.” (ECF No. 12-2, PageID.975.) Petitioner interrupted the prosecutor, stating: “That’s
cool. I’m innocent.” (Id.) The trial judge advised Petitioner that if the testimony supported the
armed robbery charge, the court would be “grant[ing] that request and [Petitioner would] have
these very, very serious, more serious than they are now,” charges brought against him. (Id.)
Petitioner acknowledged his understanding. (Id.) The trial court adjourned the preliminary
examination so that Petitioner could have more time to discuss his options with counsel. (Id.,
PageID.977.)
The parties appeared before the district court for Petitioner’s preliminary examination on
March 1, 2017. (ECF No. 12-3.) At the outset, Petitioner’s counsel advised the court that there
were “likely to be additional charges brought if he runs the examination today, that being armed
robbery is our understanding, a life offense.” (Id., PageID.985.) Counsel represented that Petitioner
“understands all of this, and he comprehends it, and that he wants to move forward with the
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examination today.” (Id.) At the end of testimony, the district court concluded that probable cause
existed to bind over Petitioner “for both the unarmed robbery and the armed robbery.” (Id.,
PageID.1029.)
The parties returned to the district court on August 9, 2017, for another preliminary
examination in Case No. 17-07323-FH. (ECF No. 12-6.) The district court indicated that the case
was scheduled for a preliminary examination on one count of armed robbery. (Id., PageID.1047.)
The prosecution notified the court that Petitioner had another armed robbery case pending. (Id.,
PageID.1048.) At the end of the hearing, the district court concluded that probable cause existed
to bind Petitioner over on an armed robbery charge. (Id., PageID.1072.) The court asked
Petitioner’s counsel if Petitioner should be arraigned, and counsel represented that they were
waiving arraignment. (Id.)
After consideration of the foregoing, Petitioner offers no basis to challenge the Kent
County Circuit Court’s subject matter jurisdiction over his criminal prosecution and no basis to
conclude that his challenge to subject matter jurisdiction might rise to the level of a federal
constitutional violation. Likewise, Petitioner clearly received adequate notice of both armed
robbery charges well before his trial began on February 5, 2018. Petitioner offers no argument to
suggest that he was unable to adequately prepare a defense on those charges. Moreover, the record
reflects that Petitioner waived arraignment in Case No. 17-07323-FH. Accordingly, because
Petitioner cannot demonstrate that the trial court’s rejection of this claim was contrary to, or an
unreasonable application of, clearly established federal law, he is not entitled to relief with respect
to this aspect of habeas ground I.

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2.

Actual Innocence

As noted supra, Petitioner contends that he is actually innocent of the two armed robberies
for which he was convicted. (Pet., ECF No. 1, PageID.11.) He asserts that he has provided
photographs that show that he is not the suspect. (Id.)
Any claim of actual innocence, however, fails to state a cognizable federal claim. The
Supreme Court has held that “[c]laims of actual innocence based on newly discovered evidence
have never been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceeding.” Herrera v. Collins,
506 U.S. 390, 400 (1993). But the Herrera Court did not close the door completely, stating in
dicta: “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial
would render the execution of a defendant unconstitutional, and warrant federal habeas relief if
there were no state avenue open to process such a claim.” Id. at 417. Thus, even without the
occurrence of any independent constitutional violation during the state criminal proceeding,
federal habeas relief might be warranted for “truly persuasive demonstration of actual innocence,”
provided: (1) the habeas petition seeks relief in a capital case, in which case such a demonstration
of actual innocence “would render the execution of a defendant unconstitutional”; and (2) there is
“no state avenue open to process such a claim.” Id. The Supreme Court emphasized that “the
threshold showing for such an assumed right would necessarily be extraordinarily high.” Id.; see
also House v. Bell, 547 U.S. 518, 555 (2006) (“In Herrera, however, the Court described the
threshold for any hypothetical freestanding innocence claim as ‘extraordinarily high.’”); Cress v.
Palmer, 484 F.3d 844, 854–55 (6th Cir. 2007).
Two years after Herrera, the Supreme Court held that a claim of actual innocence can be
raised “to avoid a procedural bar to the consideration of the merits of [the petitioner’s]
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constitutional claims.” Schlup v. Delo, 513 U.S. 298, 326–27 (1995). “[I]n an extraordinary case,
where a constitutional violation has probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for
the procedural default.” Murray v. Carrier, 477 U.S. 478, 496 (1986). In Schlup, the Supreme
Court held that a credible showing of actual innocence was sufficient to enable a court to reach the
merits of an otherwise procedurally barred habeas petition. Schlup, 513 U.S. at 317. The actual
innocence claim in Schlup is “not itself a constitutional claim, but instead a gateway through which
a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the
merits.” Id. at 315 (citing Herrera, 506 U.S. at 404). Thus, the Supreme Court distinguished
between a procedural innocence claim, which can permit a petitioner to overcome procedural
obstacles that would otherwise preclude review of underlying constitutional claims, and a
substantive or “free-standing” claim of innocence discussed in Herrera.
This Court may grant habeas corpus relief only when the state court has violated or
unreasonably applied a clearly established holding of the Supreme Court. See 28 U.S.C. § 2254(d);
Williams, 529 U.S. at 412. In the absence of clearly established Supreme Court precedent
establishing a free-standing claim of actual innocence, Petitioner’s claim is without merit. The
Sixth Circuit repeatedly has held that free-standing claims of actual innocence are not cognizable
on habeas corpus review. See Smith v. Nagy, 962 F.3d 192, 206 (6th Cir. 2020) (citing Schlup and
Herrera); Cress, 484 F.3d at 854 (citing cases). Even if Petitioner could invoke this exception and
obtain habeas relief on his freestanding innocence claim, he would have to meet both of the
requirements set forth above and then overcome the “extraordinarily high” threshold. Petitioner
fails the first requirement. This is not a capital case, and thus, the concern about the
unconstitutionality of executing a defendant who has shown persuasive evidence of actual
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innocence is not implicated. See Herrera, 506 U.S. at 417 (“We first point out the obvious - that
this is not, in fact, a capital case.”). Accordingly, Petitioner cannot obtain habeas corpus relief on
any freestanding claims of actual innocence, and he is not entitled to habeas relief with respect to
this portion of habeas ground I.
In sum, Petitioner’s challenges to the bindover, the lack of arraignment, the court’s subjectmatter jurisdiction, and the lack of notice of the armed robbery charge are meritless, and Petitioner
cannot maintain his freestanding actual innocence claim in this federal habeas corpus proceeding.
Accordingly, Petitioner is not entitled to relief with respect to habeas ground I.
B.

Grounds Implicating Eyewitness Identification Procedures

Petitioner raises two grounds for relief that implicate the eyewitness identifications made
in his case. In habeas ground II, Petitioner contends that the “Michigan Courts erroneously relied
on impermissible identification procedure(s).” (Pet., ECF No. 1, PageID.13.) According to
Petitioner, the prosecutor “showed the Government’s key witness only 1 photograph of [Petitioner]
in handcuffs, prior to the [government] witness providing testimony, and making an
[i]dentification of Petitioner.” (Id.) In habeas ground IX, Petitioner suggests that the prosecutor
obtained identification of Petitioner “as the direct result of police misconduct.” (Id., PageID.64.)
On the third day of trial, prior to the jury being brought into the courtroom, the trial court
conducted a short evidentiary hearing regarding the photo that was presented to the Marathon clerk
before the preliminary examination. (Trial Tr. III, ECF No. 12-10, PageID.1156.) The clerk
testified that shortly before the February 22, 2017, preliminary examination, she was shown a
photograph of a person “in front of the counter, it was a person in totally black.” (Id.,
PageID.1157.) The clerk testified that Petitioner’s counsel at the time had showed her a
photograph, and that the prosecutor showed her a different photograph. (Id.) She testified that the
15

photograph that the prosecutor showed her was a “full frontal” photograph of Petitioner. (Id.,
PageID.1157–1158.) During the preliminary examination, the clerk testified that she had been
shown two photographs before the hearing. (Id., PageID.1158.) The clerk testified that prior to the
preliminary examination, she had an idea of what the suspect looked like. (Id., PageID.1159.) She
acknowledged that she was not really paying attention to Petitioner during that hearing. (Id.) The
clerk testified that she recognized Petitioner as the individual involved in the offense because the
“memory of his face [was] embedded” in her mind after she was put into a choke hold. (Id.,
PageID.1161.)
The court also heard testimony from the prosecutor who handled the preliminary
examination. When asked if he had shown the clerk any photographs related to this case, the
prosecutor responded, “No, no, I did not.” (Id., PageID.1162.) When asked if he would have shown
any photographs, the prosecutor replied, “I have never in my career. . . . I don’t show evidence to
a witness or a victim prior to testimony, and I don’t believe I ever have. That’s not something—
and, if I can, I would have had no reason to show her photographs in this particular case.” (Id.,
PageID.1162–1163.) The prosecutor acknowledged that he introduced photographs during his
redirect at the preliminary examination. (Id., PageID.1163.)
The trial court accepted the prosecutor’s testimony that “he did not show photographs to
[the clerk] prior to her testimony.” (Id., PageID.1164.) The trial court went on to state:
In any case, it seems to me the dispositive testimony on this whole issue is that of
[the clerk] when she says she can independently identify the defendant irrespective
of whether she was shown photographs during the preliminary examination or
before the preliminary examination or both. She had an up close and personal
encounter with the defendant under most unpleasant circumstances, and she says
that she remembers him independently and can identify him without reference to
having seen any photographs at any time. And I believe that is simply the end of
the inquiry.
16

So I will allow the witness’s testimony. I will also allow Mr. Pyrski to engage in
whatever cross-examination he may have on some of these points. The witness is
clearly confused about certain details, and that may be fair game on crossexamination. But I believe the issue goes to the weight of the testimony rather than
its admissibility, and I will accept [the clerk’s] identification testimony in open
court.
(Id.)
The jury was then called into the courtroom, and the Marathon clerk testified. During direct
examination, the prosecutor and the clerk engaged in the following colloquy:
Q:

Okay. Now, that individual that we’re talking about, is he in the courtroom
today?

A:

Yes, he is.

Q:

Okay. Can you describe something he’s wearing?

A:

(Pause). Do I have to look at him?

Q:

You have to—unfortunately, just briefly, yes.

A:

Ugh. I remember he had no hair on his head, and he did, yep, and that facial
hair.

Q:

Okay.

A:

It was just a little bit thinner than what he’s got now.

Q:

Okay.

A:

But yeah, it’s him. I got real close and personal with him that day.

Q:

And—and you were very descriptive with regard to the police and beard. If
you can explain to the jury what you remember about his beard.

A:

It was a close—a close shaven beard like it’s to the face and it’s really
perfect. It like shaped his face.

(Id., PageID.1166.) The prosecutor then showed the clerk a photograph of Petitioner, and she noted
that the photograph showed what she recalled the beard looking like at the time of the robbery.

17

(Id.) The clerk testified that her identification was based on her independent recollection, and that
she had been in close proximity with Petitioner during the robbery. (Id., PageID.1167.)
Due process provides a “check on the admission of eyewitness identification, applicable
when the police have arranged suggestive circumstances leading the witness to identify a particular
person as the perpetrator of a crime.” Perry v. New Hampshire, 565 U.S. 228, 232 (2012). As
summarized in Perry, the Supreme Court has developed a two-part test for determining whether
evidence gathered from an eyewitness identification must be excluded from trial due to the unduly
suggestive nature of the identification procedure. Id. at 238–39 (citing Neil v. Biggers, 409 U.S.
188, 196 (1972), and Manson v. Brathwaite, 432 U.S. 98, 107 (1997)). First, the Perry court stated
that “due process concerns arise only when law enforcement officers use an identification
procedure that is both suggestive and unnecessary.” Id. Second, even when the police use such a
procedure, suppression of the resulting identification is required only when, under the totality of
the circumstances, the “improper police conduct created a ‘substantial likelihood of
misidentification.’” Id. at 239 (quoting Brathwaite, 432 U.S. at 116). The central concern in the
second part of the inquiry is the reliability of the identification, and whether “the ‘indicators of [a
witness’] ability to make an accurate identification’ are ‘outweighed by the corrupting effect’ of
law enforcement suggestion.” Id. (quoting Brathwaite, 432 U.S. at 114).
Petitioner raised his challenges to the eyewitness identification procedures on both direct
appeal and in his Rule 6.500 motion. On direct appeal, the court of appeals addressed Petitioner’s
claims under the following standard:
Due process protects defendants from pretrial identifications obtained through
unnecessarily suggestive procedures. Moore v. Illinois, 434 U.S. 220, 227; 98 S.
Ct. 458; 54 L. Ed. 2d 424 (1977); Hickman, 470 Mich. at 607. “In order to sustain
a due process challenge, a defendant must show that the pretrial identification
18

procedure was so suggestive in light of the totality of the circumstances that it led
to a substantial likelihood of misidentification.” Kurylczyk, 443 Mich. at 302.
When examining the totality of the circumstances, relevant factors include:
the opportunity for the witness to view the criminal at the time of the crime,
the witness’ degree of attention, the accuracy of a prior description, the
witness’ level of certainty at the pretrial identification procedure, and the
length of time between the crime and the confrontation. [People v. Colon,
233 Mich. App. 295, 304–305; 591 N.W.2d 692 (1998).]
If the witness’s in-court identification is based on a sufficiently independent basis,
however, that may “purge the taint” of an illegal identification. Id. at 304. To
determine if an independent basis for identification exists, the following factors are
relevant:
1. Prior relationship with or knowledge of the defendant.
2. The opportunity to observe the offense. This includes such factors as
length of time of the observation, lighting, noise or other factor[s] affecting
sensory perception and proximity to the alleged criminal act.
3. Length of time between the offense and the disputed identification . . . .
4. Accuracy or discrepancies in the pre-lineup or showup description and
defendant’s actual description.
5. Any previous proper identification or failure to identify the defendant.
6. Any identification prior to lineup or showup of another person as
defendant.
7. [The mental state of the witness at the time of the crime.]
8. Any idiosyncratic or special features of defendant. [People v. Kachar,
400 Mich. 78, 95–96; 252 N.W.2d 807 (1977).]
Wood, 2019 WL 4389161, at *2–3. Although the court of appeals primarily cited state law, the
standard set forth is functionally identical to the Perry standard set forth supra. Thus, there is no
question that the court of appeals applied the correct standard.
The trial court’s application of the correct standard eliminates the possibility that the
resulting decision is “contrary to” clearly established federal law. As the Supreme Court stated in
Williams v. Taylor:
19

The word “contrary” is commonly understood to mean “diametrically different,”
“opposite in character or nature,” or “mutually opposed.” Webster’s Third New
International Dictionary 495 (1976). The text of § 2254(d)(1) therefore suggests
that the state court’s decision must be substantially different from the relevant
precedent of this Court. The Fourth Circuit’s interpretation of the “contrary to”
clause accurately reflects this textual meaning. A state-court decision will certainly
be contrary to our clearly established precedent if the state court applies a rule that
contradicts the governing law set forth in our cases.
Williams, 529 U.S. at 405. The Court went on to offer, as an example of something that is not
“contrary to” clearly established federal law, the following:
[A] run-of-the-mill state-court decision applying the correct legal rule from our
cases to the facts of a prisoner’s case would not fit comfortably within
§ 2254(d)(1)’s “contrary to” clause. Assume, for example, that a state-court
decision on a prisoner’s ineffective-assistance claim correctly identifies Strickland
as the controlling legal authority and, applying that framework, rejects the
prisoner’s claim. Quite clearly, the state-court decision would be in accord with our
decision in Strickland as to the legal prerequisites for establishing an ineffectiveassistance claim, even assuming the federal court considering the prisoner’s habeas
application might reach a different result applying the Strickland framework itself.
It is difficult, however, to describe such a run-of-the-mill state-court decision as
“diametrically different” from, “opposite in character or nature” from, or “mutually
opposed” to Strickland, our clearly established precedent. Although the state-court
decision may be contrary to the federal court’s conception of how Strickland ought
to be applied in that particular case, the decision is not “mutually opposed” to
Strickland itself.
Id. at 406. Petitioner, therefore, can only overcome the deference afforded state court decisions if
the state courts’ determinations were based on an unreasonable application of the standard—here
Perry, rather than Strickland—or if the resolutions were based on unreasonable determinations of
the facts. See 28 U.S.C. § 2254(d).
After setting forth the standard, the court of appeals rejected Petitioner’s arguments
concerning the suggestive identification, stating:
[Petitioner] argues that the prosecutor violated his due-process rights by showing
the Marathon clerk an impermissibly suggestive photograph of him before the
preliminary examination. This argument is without merit. The trial court was
uniquely situated to judge the credibility of the witnesses before it. See MCR
20

2.613(C). Given the competing testimony and the trial court’s conclusion that the
prosecutor’s testimony was more credible than the clerk’s testimony, the trial court
did not clearly err when it concluded that the prosecutor did not show the clerk any
photographs before the preliminary examination. See MCR 2.613(C). Therefore,
the trial court did not err in concluding that the clerk’s in-court identification of
[Petitioner] was not obtained in an unnecessarily suggestive manner. See Kurylczyk,
443 Mich. at 302. [Petitioner] is not entitled to relief on this issue. See Hickman,
470 Mich. at 607; Kurylczyk, 443 Mich. at 302.
Additionally, even if the prosecutor had shown the clerk an unduly suggestive
photograph before the preliminary examination, her in-court identification remains
admissible because she had an independent basis for identifying [Petitioner] as the
robber. The clerk had the opportunity to observe [Petitioner] closely during the
robbery; she identified [Petitioner] within one month of the robbery; she
consistently provided a description of the robber that matched [Petitioner]; and she
never expressed doubt that [Petitioner] was the robber. Applying the Kachar
factors, the clerk’s testimony shows that she had an independent basis for the
identification. Therefore, the trial court did not err when it admitted the clerk’s incourt identification of [Petitioner] as the robber. See Kachar, 400 Mich. at 95–96.
Wood, 2019 WL 4389161, at *3. Petitioner reiterated his due process claim in his Rule 6.500
motion, and the trial court summarily rejected it, noting that it could not “substitute its judgment
for that of the Court of Appeals.” (ECF No. 12-16, PageID.1427–1428.)
Petitioner faults the identification procedure used with the Marathon clerk as being highly
suggestive because the clerk was allegedly only shown one photograph—a photograph of
Petitioner. (Pet., ECF No. 1, PageID.21.) When determining whether an identification procedure
using photographs was unnecessarily suggestive, “the court may consider ‘the size of the
[photographic] array, the manner of its presentation by the officers, and the details of the
photographs themselves.’” United States v. McComb, 249 F. App’x 429, 437 (6th Cir. 2007) (citing
United States v. Sanchez, 24 F.3d 1259 (10th Cir. 1994)); see also United States v. Wade, 388 U.S.
218 (1967). The second step of the inquiry requires consideration of a number of factors, including:
1) the witness’s opportunity to view the criminal at the time of the crime; 2) the
witness’s degree of attention; 3) the accuracy of the witness’s prior description of
21

the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the
time between the crime and the confrontation.
McComb, 249 F. App’x at 437 (citing United States v. Beverly, 369 F.3d 516 (6th Cir. 2004); see
also Haliym, 492 F.3d at 704 (citing Brathwaite, 432 U.S. at 114, and Biggers, 409 U.S. at 199–
200). If “the first step of the requisite analysis ends in the government’s favor, [the court] need not
address” the second step of the inquiry. United States v. Stamper, 91 F. App’x 445, 462 (6th Cir.
2004).
As noted above, the state courts concluded that the prosecutor who handled the preliminary
examination was more credible than the clerk regarding whether photographs had been shown to
her prior to the hearing. Such a credibility determination is a factual determination that this Court
must presume to be correct. See Wesson v. Shoop, 17 F.4th 700, 705 (6th Cir. 2021) (citing MillerEl v. Cockrell, 537 U.S. 322, 339–40 (2003); Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).
Petitioner can overcome that presumption with clear and convincing evidence. He offers nothing.
Moreover, to the extent Petitioner takes issue with the clerk’s in-court identification of him,
the Supreme Court has acknowledged that in-court identifications are inherently “suggestive.” See
Perry, 556 U.S. at 244 (noting that “[m]ost eyewitness identifications involve some element of
suggestion. Indeed, all in-court identifications do”). However, the fact that an identification
procedure is suggestive does not, standing alone, implicate due process protections. See id. at 239.
Instead, there must be “improper law enforcement activity” before a suggestive identification
requires further scrutiny. See id. Because Perry identified in-court identifications as a type of
suggestive identification that does not implicate due process protections, and because Petitioner
has not shown any evidence of “improper law enforcement activity” here, no constitutional error
regarding the clerk’s in-court identification of Petitioner occurred. Moreover, Petitioner offers
22

nothing to overcome the court of appeals’ conclusion that the in-court identification was premised
upon an independent basis for identifying Petitioner.
In sum, because Petitioner has failed to demonstrate that the state courts’ rejection of his
claims regarding the identification procedures was contrary to, or an unreasonable application of,
clearly established federal law, Petitioner is not entitled to relief with respect to habeas grounds II
and IX.
C.

Ground III—Admission of Prejudicial Photograph

In habeas ground III, Petitioner contends that the trial court should have suppressed a
photograph of Petitioner in handcuffs, as well as any “fruits obtained” therefrom, because “it was
an unduly suggestive [i]dentification [p]rocedure” that violated Petitioner’s Fifth, Sixth, and
Fourteenth Amendment rights. (Pet., ECF No. 1, PageID.36.) Specifically, Petitioner contends that
the trial court erred in admitting the photograph because it was “analogous to forcing him to appear
before a jury in handcuffs or shackles.” (Id., PageID.38.)
Petitioner raised this claim on direct appeal, and the court of appeals concluded that it was
waived. Wood, 2019 WL 4389161, at *3. Specifically, the court of appeals noted: “In this case,
when the prosecutor presented the photograph for admission into evidence, defense counsel stated
that he had ‘no objection.’” Id. As noted above, the Court has already concluded that the state
courts reasonably concluded that the identification procedure used was not unduly suggestive and
did not violate Petitioner’s constitutional rights. The Court, therefore, construes habeas ground III
to be a challenge to the trial court’s evidentiary decision regarding admission of the photograph in
question.
The record reflects that on the first day of trial, prior to voir dire, the court took up pretrial
motions and matters raised by the parties. Notably, during that time, Petitioner’s counsel noted
23

that he had filed a motion to exclude photographic evidence. (Trial Tr. I, ECF No. 12-8,
PageID.1084.) Specifically, Petitioner’s counsel noted:
At one point in the Wyoming case my client is photographed while he’s handcuffed
and very apparently in custody, and they used those photographs to—well, they
were in—they were in the discovery packet that the prosecutor sent over. I don’t
want the jury to see those because he’s in handcuffs, and he’s apparently—he’s
obviously in custody, and that would be prejudicial to the case. It’s not really
relevant beyond that.
(Id.) In response, the prosecutor stated that the photograph was highly prejudicial “not because
he’s in handcuffs, but because when he’s arrested the day after, he’s wearing the exact same outfit
that he was wearing during the commission of the offense, so that’s why Mr. Pyrski is actually
trying to exclude this evidence.” (Id.) Petitioner’s counsel replied that the picture was also an issue
because it was used for an in-court identification at the preliminary hearing. (Id., PageID.1085.)
Ultimately, the trial court concluded that the photograph was admissible “for the reasons indicated
by the prosecutor if it shows the defendant wearing the same clothing he was wearing at the time
of the commission of one of these offenses, it’s clearly highly probative evidence.” (Id.)
As an initial matter, an inquiry whether evidence was properly admitted or improperly
excluded under state law “is no part of the federal court’s habeas review of a state conviction [for]
it is not the province of a federal habeas court to re-examine state-court determinations on statelaw questions.” Estelle, 502 U.S. 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’ conclusions that the trial court’s evidentiary

24

rulings in question did not violate Petitioner’s rights under state law are, therefore, axiomatically
correct.
It is possible that an evidentiary ruling—even a ruling that is axiomatically correct under
state law—still violates due process. State-court evidentiary rulings can rise to the level of due
process violations if they offend some principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.
2000) (quotation marks omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001);
Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). This approach accords the state courts wide
latitude in ruling on evidentiary matters. Seymour, 224 F.3d at 552 (6th Cir. 2000).
Further, under the AEDPA, the court may not grant relief if it would have decided the
evidentiary question differently. The court may only grant relief if Petitioner is able to show that
the state court’s evidentiary ruling was in conflict with a decision reached by the Supreme Court
on a question of law or if the state court decided the evidentiary issue differently than the Supreme
Court did on a set of materially indistinguishable facts. Sanders, 221 F.3d at 860; see also Stewart
v. Winn, 967 F.3d 534, 538 (6th Cir. 2020) (stating that, to obtain habeas relief based on an
allegedly improper evidentiary ruling, a petitioner must identify “a Supreme Court case
establishing a due process right with regard to the specific kind of evidence at issue”).
In support of his claim, Petitioner cites Taylor v. Kentucky, 436 U.S. 478 (1978). In Taylor,
the United States Supreme Court addressed the question of whether the Fourteenth Amendment’s
Due Process Clause requires that jury instructions regarding the presumption of innocence and an
indictment’s lack of evidentiary value be given when the defense makes a timely motion for such
instructions. See id. at 479. The Court held that under the facts presented, the trial court’s refusal
to give the instruction regarding presumption of innocence violated the defendant’s due process
25

rights. See id. at 490. Petitioner, however, does not explain, and the Court does not discern, how
the Supreme Court’s decision in Taylor has any bearing on whether admission of the photograph
in question violated Petitioner’s due process rights.
Petitioner has not cited, and the Court has not located, any clearly established Supreme
Court precedent holding that a state violates due process by admitting a photograph of a defendant
in handcuffs. Thus, Petitioner cannot demonstrate that the rejection of his claim concerning the
admission of the photograph is contrary to, or an unreasonable application of, clearly established
federal law. Petitioner, therefore, is not entitled to relief with respect to habeas ground III.
D.

Grounds Asserting Ineffective Assistance of Counsel

In habeas grounds IV, V, and VI, Petitioner contends that trial counsel rendered ineffective
assistance in various ways. In habeas ground VIII, Petitioner alleges that appellate counsel
rendered ineffective assistance.
1.

Standard of Review

In Strickland v. Washington, 466 U.S. 668 (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 [Petitioner] resulting in an unreliable or fundamentally unfair outcome. Id. at 687.
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 petitioner 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
26

decisions 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 [Petitioner] is not entitled to
relief if counsel’s error had no effect on the judgment. Id. at 691.
The Strickland standard that applies to trial counsel also applies to appellate counsel.
However, a criminal appellant has no constitutional right to have every non-frivolous issue raised
on appeal. Rather, “‘winnowing out weaker arguments on appeal and focusing on’ those more
likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate
advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745,
751–52 (1983)). To require appellate counsel to raise every possible colorable issue “would
interfere with the constitutionally protected independence of counsel and restrict the wide latitude
counsel must have in making tactical decisions.” Strickland, 466 U.S. at 688. As the Supreme
Court has observed, it is difficult to demonstrate that an appellate attorney has violated the
performance prong where the attorney presents one argument on appeal rather than another. Smith
v. Robbins, 528 U.S. 259, 289 (2000). In such cases, the petitioner must demonstrate that the issue
not presented “was clearly stronger than issues that counsel did present.” Id.
Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews
a state court’s application of Strickland under § 2254(d), the deferential standard of Strickland is
“doubly” deferential. Harrington, 562 U.S. at 105 (citing Knowles v. Mirzayance, 556 U.S. 111,
123 (2009)); see also Burt v. Titlow, 571 U.S. 12, 15 (2013); Cullen, 563 U.S. at 190; Premo v.
Moore, 562 U.S. 115, 122 (2011). Scrutiny of counsel’s performance is “highly deferential”, per
Strickland, to avoid the temptation to second guess a strategy after-the-fact and to “eliminate the
27

distorting effects of hindsight.” Strickland, 466 U.S. at 689. Furthermore, scrutiny of the state
court’s scrutiny of counsel’s performance must also be deferential, per 28 U.S.C. § 2254(d). In
light of that double deference, the question before the habeas court is “whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.; Jackson v. Houk,
687 F.3d 723, 740–41 (6th Cir. 2012) (stating that the “Supreme Court has recently again
underlined the difficulty of prevailing on a Strickland claim in the context of habeas and AEDPA
. . . .” (citing Harrington, 562 U.S. at 102)).
The ineffective assistance claims that Petitioner now asserts are ones that he raised in his
Rule 6.500 motion. The trial court addressed those claims under the following standard:
To prove ineffective assistance of counsel, a defendant must show that “(1)
counsel’s performance fell below an objective standard of reasonableness, and (2)
but for counsel’s deficient performance, there is a reasonable probability that the
outcome would have been different.” People v. Trakhtenberg, 493 Mich. 38, 51;
826 N.W.2d 136, 143 (2012). “In examining whether defense counsel’s
performance fell below an objective standard of reasonableness, a defendant must
overcome the strong presumption that counsel’s performance was born from a
sound trial strategy.” Id. at 52. This Court will not substitute its judgment for that
of counsel regarding matters of trial strategy, nor will it assess counsel’s
competence with the benefit of hindsight. Strickland v. Washington, 466 U.S. 668,
689 (1984). “Decisions regarding what evidence to present and whether to call or
question witnesses are presumed to be matters of trial strategy.” People v. Rockey,
237 Mich. App. 74, 76; 601 N.W.2d 887 (1999). The fact that defense counsel’s
strategy ultimate failed does not render it ineffective assistance of counsel. People
v. Stewart, 219 Mich. App. 38, 42; 555 N.W.2d 715 (1996). Finally, the failure to
advance a meritless argument or raise a futile objection does not constitute
ineffective assistance of counsel. People v. Ericksen, 288 Mich. App. 192, 201; 793
N.W.2d 120 (2010).
(ECF No. 12-16, PageID.1428–1429 (parallel citations for Strickland omitted).) Although the state
court primarily cited to state authority, the standard set forth is functionally identical to the
Strickland standard set forth supra. Thus, there is no question that the trial court applied the correct
standard.
28

Therefore, Petitioner can only overcome the deference afforded state court decisions if the trial
court’s determinations were based on an unreasonable application of Strickland or if the trial
court’s resolutions were based on unreasonable determinations of the facts. See 28 U.S.C.
§ 2254(d).
2.

Trial Counsel
a.

Failure to Object to Admission of DNA Lab Reports

In habeas ground IV, Petitioner contends that counsel was ineffective for failing to object
to the admission of the DNA reports from the state police laboratory. (Pet., ECF No. 1, PageID.41.)
Petitioner contends that the State’s expert testified regarding reports prepared by other individuals,
and that by doing so, the expert violated Petitioner’s rights under the Sixth Amendment’s
Confrontation Clause. (Id.) According to Petitioner, the expert, David Hayhurst, “had minimal to
no actual involvement in the forensic analysis of the DNA evidence in this case and was basing
[his] opinion on the reports generated by non-testifying witnesses.” (Id., PageID.46.)
Petitioner raised this claim in his Rule 6.500 motion. The trial court noted that while
admission of and testimony concerning the non-testifying individuals’ analysis “may have violated
the Confrontation Clause,” counsel was not ineffective “for failing to object to its admission
because [Petitioner] has failed to establish actual prejudice.” (ECF No. 12-16, PageID.1431.) The
trial court noted that “[e]ven if Exhibit 18 and the related testimony was improperly admitted, the
admission of and testimony regarding Exhibit 17—properly admitted as the testifying witness’
report—had already conclusively established that the DNA in question matched that of
[Petitioner].” (Id.)
The Confrontation Clause of the Sixth Amendment gives the accused the right “to be
confronted with the witnesses against him.” U.S. Const. amend VI; Pointer v. Texas, 380 U.S. 400,
29

403–05 (1965) (applying the guarantee to the states through the Fourteenth Amendment). “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 crossexamination. See Crawford v. Washington, 541 U.S. 36, 59 (2004).
At trial, David Hayhurst, a forensic scientist at the Michigan State Police forensic
laboratory in Grand Rapids, testified. (Trial Tr. II, ECF No. 12-9, PageID.1140.) During direct
examination, Hayhurst testified that he did not “collect the evidentiary sample” in Petitioner’s
case. (Id., PageID.1142.) Instead, a hat was submitted to the laboratory. (Id.) Another analyst
swabbed the hat and submitted the sample for testing. (Id.) A different analyst conducted the DNA
analysis of Petitioner’s blood sample. (Id.) Hayhurst testified that he was the one who conducted
the comparison of the “evidentiary profile that was previously obtained” from the hat swab to the
blood sample profile. (Id.) During direct examination of Hayhurst, the State introduced Exhibit 17,
which was a copy of the report that Hayhurst prepared. (Id., PageID.1145.) That report detailed
the evidence that was received for comparison and included Petitioner’s conclusions regarding the
comparison. (Id.) During redirect examination, the State introduced Exhibit 18, which was a copy
of the database association report prepared by the analyst who ran the DNA sample from the hat
through the database and obtained Petitioner’s name for potential comparison to a known sample.
(Id., PageID.1146.)
The prohibition set forth in Crawford applies “in full to forensic evidence.” See Smith v.
Arizona, 602 U.S. ----, 144 S. Ct. 1785, 1791 (2024). Accordingly, “a prosecutor cannot introduce
30

an absent laboratory analyst’s testimonial out-of-court statements to prove the results of forensic
testimony.” See id. (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (2009)). Recently,
the United States Supreme Court considered the “application of those principles to a case in which
an expert witness restates an absent lab analyst’s factual assertions to support his own opinion
testimony.” Id. In Smith, the Court held:
When an expert conveys an absent analyst’s statements in support of his opinion,
and the statements provide that support only if true, then the statements come into
evidence for their truth. As this dispute illustrates, that will generally be the case
when an expert relays an absent lab analyst’s statements as part of offering his
opinion. And if those statements are testimonial too—an issue we briefly address
but do not resolve as to this case—the Confrontation Clause will bar their
admission.
See id.
As an initial matter, it is clear that Petitioner’s counsel did not have the benefit of Smith at
the time of Petitioner’s trial. Moreover, the trial court concluded that even if Petitioner’s
Confrontation Clause rights were violated, Petitioner failed to demonstrate any actual prejudice
from the admission of the non-testifying analysts’ statements. Here, the Court need not determine
whether the trial court correctly noted a potential violation of Petitioner’s Confrontation Clause
rights because the record demonstrates any violation was harmless error and, therefore, did not
prejudice Petitioner’s defense.
Confrontation Clause violations are subject to review for harmless error. See Bailey v.
Morrison, No. 23-1254, 2023 WL 7877830, at *3 (6th Cir. Aug. 11, 2023) (citing Reiner v. Woods,
955 F.3d 549, 555 (6th Cir. 2020). In Michigan, the Michigan Supreme Court has equated
“outcome determinative” to “prejudice” when separating plain from harmless error, People v.
Vaughn, 821 N.W.2d 288, 303 (Mich. 2012), and when evaluating the Strickland standard for
ineffective assistance of counsel, People v. Harris, 840 N.W.2d 307, 308 (Mich. 2013).
31

The impact of an error on the outcome of the proceedings is also the focus of federal
harmless error analysis. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (adopting as
the standard for determining whether habeas relief is appropriate “whether the . . . error ‘had
substantial and injurious effect or influence in determining the jury's verdict.’”); O’Neal v.
McAninch, 513 U.S. 432, 436 (1995) (posing the question as “Do I, the judge, think that the error
substantially influenced the jury’s decision?”); Brown v. Davenport, 596 U.S. 118, 126 (2022)
(stating that “a state prisoner . . . must show that the error had a ‘substantial and injurious effect or
influence’ on the outcome of his trial” (quoting Brecht, 507 U.S. at 637)). The appellate court’s
decision that the error was not outcome determinative is the equivalent of a determination that the
error was harmless under Brecht. Kyles v. Whitley, 514 U.S. 419, 435–36 (1995). The
determination that any error was harmless under Brecht necessarily means that it is not prejudicial
under Strickland. See Kyles, 514 U.S. at 436 (explaining that the United States v. Agurs, 427 U.S.
97 (1976), materiality standard, later adopted as the prejudice standard for ineffective assistance
of counsel claims, requires the habeas petitioner to make a greater showing of harm than is
necessary to overcome the harmless error test of Brecht); see also Wright v. Burt, 665 F. App’x
403, 410 (6th Cir. 2016) (“[O]ur previous analysis of Strickland prejudice applies to the assessment
of whether the Confrontation Clause violation was harmless error under Brecht.”); Bell v. Hurley,
97 F. App'x 11, 17 (6th Cir. 2004) (“Because we find the error to be harmless [under Brecht] Bell
cannot meet the prejudice requirement of Strickland . . . .”); Kelly v. McKee, No. 16-1572, 2017
WL 2831019 at *8 (6th Cir. Jan. 24, 2017) (“Because Kelly suffered harmless error [under Brecht]
at best, he cannot establish that he suffered prejudice [under Strickland].”).
The Sixth Circuit has noted that when evaluating whether a Confrontation Clause error is
harmless, the court should consider:
32

“the importance of the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, . . . and, of course,
the overall strength of the prosecution’s case.”
Hill v. Hofbauer, 337 F.3d 706, 718 (6th Cir. 2003) (quoting Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986)). Here, the trial court did not address whether the admission of the non-testifying
analysts’ report and statements was harmless error; instead, the court concluded that Petitioner had
not demonstrated any actual prejudice for purposes of his ineffective assistance claim. The trial
court properly noted that Hayhurst himself had compared the DNA sample taken from the hat to
the sample of Petitioner’s blood and concluded that the two samples matched. In light of
Hayhurst’s testimony regarding the analysis he performed, as well as the testimony of the two
victims who conclusively identified Petitioner as the individual who committed the robberies, the
Court cannot conclude that the admission of the non-testifying analysts’ report and statements
prejudice Petitioner’s defense in any way. Thus, because the standard for prejudice under
Strickland requires the Petitioner to make a greater showing of prejudice than is required under
the standard for harmless error, Petitioner simply cannot satisfy the prejudice prong of the
Strickland test.
In sum, Petitioner has not demonstrated that the trial court’s rejection of this assertion of
ineffective assistance is contrary to, or an unreasonable application of, clearly established federal
law. Petitioner, therefore, is not entitled to relief with respect to habeas ground IV.
b.

Failure to Object to Admission of Blood Sample

In habeas ground V, Petitioner faults counsel for failing to object to the admission of “the
known sample of Petitioner’s blood.” (Pet., ECF No. 1, PageID.51.) According to Petitioner, this
sample was obtained in violation of his Fourth Amendment rights and, therefore, should have been
33

excluded under the “fruits of the poisonous tree doctrine.” (Id.) Petitioner argues that Detective
Jorgenson attempted to collect a blood sample from Petitioner on at least three separate occasions
“under the guise of a warrant.” (Id.) Detective Jorgenson “then submitted a request for a warrant
based upon the false allegation that Petitioner[’s] DNA was found on the Knicks hat.” (Id.)
Petitioner argues that such an assertion by Detective Jorgenson was fraudulent. (Id.)
Petitioner raised this claim in his Rule 6.500 motion, and the trial court rejected it, stating:
[Petitioner] claims that the warrant allowing the detectives to collect a sample of
[Petitioner’s] DNA was based on a false allegation that [Petitioner’s] DNA was
found on a hat. [Petitioner] points to David Hayhurst’s testimony that when the
swab from the hat was first submitted to the laboratory, the lab “had nothing in our
system” and that the first and last name were unknown. However, Hayhurst also
testified that one of his colleagues performed a separate test by inputting the DNA
profile from the hat into the lab’s database to see if there could be an association.
That test resulted in a match for “Christopher Charles Woods [sic],” or [Petitioner].
It was from that match that the detectives obtained a warrant to collect [Petitioner’s]
DNA. Therefore, contrary to [Petitioner’s] claims, there is no evidence that the
warrant was based on a false allegation. And [Petitioner’s] trial counsel was not
ineffective for failing to raise this argument.
(ECF No. 12-16, PageID.1433.)
The Supreme Court has noted that “[w]here defense counsel’s failure to litigate a Fourth
Amendment claim competently is the principal allegation of ineffectiveness, the defendant must
also prove that his Fourth Amendment claim is meritorious and that there is a reasonable
probability that the verdict would have been different absent the excludable evidence in order to
demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); see also
Richardson v. Palmer, 941 F.3d 838, 857 (6th Cir. 2019). Accordingly, Petitioner’s ineffective
assistance claim requires consideration of the merits of Petitioner’s Fourth Amendment claim and,
to the extent that Petitioner’s Fourth Amendment claim lacks merit, his ineffective assistance claim
necessarily fails.
34

The Fourth Amendment safeguards “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures” and mandates that “no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend.
IV. The Fourth Amendment requires “only three things” with respect to search warrants. Dalia v.
United States, 441 U.S. 238, 255 (1979). First, the warrant must be issued by a “neutral and
detached” magistrate “capable of determining whether probable cause exists.” Shadwick v. City of
Tampa, 407 U.S. 345, 350 (1972). Second, there must be a finding of probable cause. See U.S.
Const. amend. IV. Third, the search warrant must “particularly describe[e] the place to be searched,
and the . . . things to be seized.” Id.; see also Maryland v. Garrison, 480 U.S. 79, 84–85 (1987).
A defendant may be entitled to have a warrant voided when the warrant affiant’s statements
were deliberately false or made in reckless disregard for the truth and the affidavit’s remaining
content is insufficient to establish probable cause. Franks v. Delaware, 438 U.S. 154, 156 (1978).
The burden rests on the defendant to establish by a preponderance of the evidence that the affidavit
contains a reckless or deliberate falsehood and that with this material “set to one side, the
affidavit’s remaining content is insufficient to establish probable cause.” Id.
The trial court rejected this claim of ineffective assistance because Petitioner had not
demonstrated that the warrant to obtain his blood sample was based upon a false allegation.
Petitioner has not corrected that deficiency here. During Petitioner’s trial, David Hayhurst testified
that when the case was initially submitted to the state police laboratory, no suspect was listed.
(Trial Tr. II, ECF No. 12-9, PageID.1146.) Hayhurst noted that a coworker had entered a portion
of the unknown DNA profile from the hat into the laboratory’s database “to see if there could be
an association against anyone in the database.” (Id.) That was “the first instance where an actual
35

name [became] attached to the case.” (Id.) As noted by the trial court, Hayhurst testified that the
database came back with a match to Christopher Charles Woods. (Id.) That report was then sent
to law enforcement officers so that they could obtain a DNA sample from Petitioner. (Id.)
Based upon this testimony, Petitioner has not demonstrated that Detective Jorgenson, who
Petitioner contends prepared the warrant to obtain the sample of Petitioner’s blood, included false
statements in the affidavit supporting the warrant. See Franks, 438 U.S. at 156. Rather, the state
laboratory first obtained Petitioner’s name by running the DNA sample obtained from the hat
through the database. Based upon that match, Detective Jorgenson obtained the warrant to obtain
Petitioner’s blood sample. Simply put, the challenge that Petitioner claims his counsel failed to
raise was meritless, and “[o]mitting meritless arguments is neither professionally unreasonable nor
prejudicial.” Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013); see also Mahdi v. Bagley, 522
F.3d 631, 638 (6th Cir. 2008) (“No prejudice flows from the failure to raise a meritless claim.”).
Accordingly, Petitioner is not entitled to relief with respect to habeas ground V.
c.

Failure to Conduct Pretrial Preparatory Investigation

In habeas ground VI, Petitioner faults trial counsel for not conducting any pretrial
investigation of the witnesses in this matter. (Pet., ECF No. 1, PageID.53.) Petitioner suggests that
this resulted “in the prejudice that the [d]efense [c]ounsel was unable to subject the prosecution’s
case to any ‘true’ meaningful adversarial testing.” (Id.)
Specifically, Petitioner faults counsel for not conducting any pretrial interviews of any of
the prosecution’s witnesses. (Id., PageID.54.) He also suggests that counsel failed to investigate
and challenge the foundation and chain of custody of the Knicks hat that was ultimately used to
prepare the DNA profile that identified Petitioner as a suspect. (Id., PageID.55.) Petitioner argues
further that counsel should have “sought an expert witness to challenge the methodology used, and
36

the veracity of the witness’s findings.” (Id., PageID.56.) Petitioner also avers that counsel should
have sought an adjournment “when surprised with David Hayhurst, a NON-LISTED [government]
witness.” (Id., PageID.58.)
Petitioner raised this claim in his Rule 6.500 motion, and the trial court rejected it. First,
the trial court rejected Petitioner’s claim that counsel failed to object to the late amendment of the
prosecution’s witness list to add David Hayhurst. (ECF No. 12-16, PageID.1430.) The trial court
noted that Petitioner had failed to provide facts as to when Hayhurst was added “or the trial court’s
reasoning for allowing the addition.” (Id.) The trial court also rejected Petitioner’s claim regarding
counsel’s failure to investigate, stating:
[Petitioner] next argues that his trial counsel was ineffective due to his failure to
conduct any pretrial preparatory investigation of the prosecution’s witnesses. The
Court now finds that [Petitioner] has not sufficiently established that his trial
counsel did not investigate or meet with any of the prosecution’s witnesses. Rather,
he only asserts in his affidavit that when he questioned his counsel as to the
involvement of each of the prosecution’s witnesses, his counsel told him he did not
know.
Even if [Petitioner] had sufficiently established that his trial counsel wholly failed
to investigate these witnesses, he has failed to establish that, by doing so,
[Petitioner] suffered actual prejudice. Defense counsel may be ineffective for
failing to investigate witnesses if it deprived defendant of a substantial defense or
undermined confidence in the trial’s outcome. Only then[] can the Court determine
that [Petitioner] suffered actual prejudice or that a different result was reasonably
probable.
[Petitioner] claims that, if defense counsel had investigated the witnesses who were
to testify as to the DNA profile found in the Knicks hat, defense counsel could have
obtained an exclusion of this evidence. For reasons previously discussed, the Court
finds that much of David Hayhurst’s testimony regarding the DNA found on the
hat, and Exhibit 17, were admissible. Moreover, even if [Petitioner] had been
successful in excluding the DNA evidence, there was other sufficient evidence
linking him to the armed robberies, including identification by eyewitnesses and by
his federal probation officer. [Petitioner] has also failed to provide any support for
this theory that there was a “miscode” in the software used for the DNA analysis.
Therefore, [Petitioner] has failed to establish that he has suffered actual prejudice
from his trial counsel’s alleged failure to interview witnesses.
37

(ECF No. 12-16, PageID.1432–1433.)
Petitioner offers nothing in his § 2254 proceedings to refute the state court’s conclusions.
A review of the record indicates that counsel thoroughly cross-examined the witnesses called by
the prosecution. With respect to any possible witnesses that were not presented by the prosecution,
Petitioner fails to demonstrate that their testimony would have been favorable to his defense in any
way. Likewise, Petitioner provides no evidence that an expert was available to testify on his behalf
and that an expert would have testified in the ways suggested by Petitioner. “A defendant cannot
simply state that the testimony would have been favorable; self-serving speculation will not sustain
an ineffective assistance claim.” United States v. Ashimi, 932 F.2d 643, 650 (6th Cir. 1991)
(footnote omitted); see also Clark v. Waller, 490 F.3d 551, 558 (6th Cir. 2007) (rejecting an
ineffective assistance claim for the petitioner’s failure to provide a “basis on which to conclude
that failure to call a possibly favorable witness amounts to constitutionally deficient
performance”).
Overall, Petitioner fails to demonstrate that the trial court’s rejection of this assertion of
ineffective assistance is an unreasonable application of, Strickland or that it is based on an
unreasonable determination of the facts. Petitioner, therefore, is not entitled to relief with respect
to habeas ground VI.
3.

Appellate Counsel

In habeas ground VIII, Petitioner contends that appellate counsel rendered ineffective
assistance. (Pet., ECF No. 1, PageID.64.) Petitioner does provide any factual support for this
assertion. In his Rule 6.500 motion, Petitioner alleged that appellate counsel was ineffective for
failing to assert the following arguments on direct appeal: “(1) the jury verdict form was
constitutionally deficient, (2) the prosecutor intimidated the Walgreen’s clerk into testifying, and
38

(3) Defendant’s trial counsel was ineffective for a variety of reasons.” (ECF No. 12-16,
PageID.1425.) The trial court rejected Petitioner’s arguments, concluding that the underlying
claims lacked merit. (Id., PageID.1427, 1429–1433.)
As thoroughly discussed supra, Petitioner’s underlying claims lack merit. Thus, “appellate
counsel’s failure to raise [those] claim[s] on direct appeal cannot be deemed constitutionally
deficient performance.” Willis v. Smith, 351 F.3d 741, 746 (6th Cir. 2003); see also Greer v.
Mitchell, 264 F.3d 663, 676 (6th Cir. 2001) (“If trial counsel performed adequately, our inquiry is
at an end; by definition, appellate counsel cannot be ineffective for a failure to raise an issue that
lacks merit.”). Petitioner, therefore, is not entitled to relief with respect to habeas ground VIII.
E.

Ground VII—Jury Verdict Form

In habeas ground VII, Petitioner contends that the “jury verdict form in both cases was
[c]onstitutionally [d]eficient and . . . effectively denied his right to a [t]rial by [j]ury.” (Pet., ECF
No. 1, PageID.61.) Specifically, Petitioner argues that the jury verdict form was deficient because
“it did not allow for a general verdict of Not Guilty, or include a Not Guilty option for the robber[y]
and it also did not include a general verdict of Not Guilty, or include a Not Guilty for the lesser
included offense of robbery.” (Id., PageID.62.)
Petitioner raised his challenge to the jury verdict form in his Rule 6.500 motion, and the
trial court relied upon state law to reject it. The trial court noted that Petitioner’s jury verdict form
“listed the possible verdicts as ‘guilty of robbery as charged,’ ‘guilty of the lesser included offense
of robbery,’ or ‘not guilty.’” Therefore, . . . the ‘not guilty’ verdict clearly referred to both the
charged offense and the lesser included offense.” (ECF No. 12-16, PageID.1426.) The trial court
noted that because the “not guilty” option was listed after the two guilty options, it was clear that
it “referred to both the offense charged and the lesser included.” (Id., PageID.1427.)
39

Upon review of the record, the Court concludes that Petitioner has failed to demonstrate
any defect in the jury verdict forms that rise to the level of a constitutional violation. To obtain
habeas relief based upon an allegedly improper jury instruction or verdict form, a petitioner must
show that the instructions or form, taken as a whole, were “so infirm that they rendered the entire
trial fundamentally unfair.” Doan v. Carter, 548 F.3d 449, 455 (6th Cir. 2008) (quoting Austin v.
Bell, 126 F.3d 843, 846–47 (6th Cir. 1997)). Moreover, the Supreme Court has held that use of a
general verdict form does not violate due process. See Schad v. Arizona, 501 U.S. 624 (1991),
abrogated on other grounds recognized by Edwards v. Vannoy, 593 U.S. 255, 265 n.4 (2021).
At the end of final jury instructions, the trial court recited the language of the jury verdict
forms for the parties and the jury:
Now, you should have two verdict forms here. I think the attorneys have seen them
as well. The first one, chronologically, is in 17-07323-FC. The form identifies the
court, Kent County Circuit Court; the case, People of the State of Michigan against
Christopher Charles-Eubanks Wood; the final number indicates for clarification
that this is the Walgreens case, on January 28 of 2017.
It goes on to recite the verdict form:
We, the jury in the above-entitled cause, all 12 jurors being in agreement, find upon
our oath that the defendant, Christopher Wood, is—here are your three choices:
Guilty of robbery as charge[d];
Guilty of the lesser included offense of robbery,
Or; Not guilty.
The second form is in the same format, 17-02032-FCt. For clarification, it states
Marathon, February 4, 2017, the verdict form.
We, the jury, in the above-entitled cause, all 12 jurors being in agreement, find upon
our oaths that the defendant, Christopher Wood, is—again, you have the same three
choices:
Guilty of robbery as charged;
40

Guilty of the lesser included offense of robbery, and;
Not guilty.
(Trial Tr. IV, ECF No. 12-11, PageID.1200.) Contrary to Petitioner’s argument, the jury verdict
forms clearly included the option for the jury to find Petitioner not guilty of both the armed robbery
charges and the lesser-included offenses. Petitioner, therefore, cannot demonstrate that the trial
court’s rejection of this claim was contrary to, or an unreasonable application of, clearly
established federal law, and he is not entitled to relief with respect to habeas ground VII.
F.

Ground X—Prosecutorial Misconduct

In habeas ground X, Petitioner contends that “[t]he prosecutor’s multiple instances of
misconduct violated [Petitioner’s] 5th, 6th, and 14th Amendment rights to due process of law, and
a fair trial.” (Pet., ECF No. 1, PageID.64.)
For a petitioner to be entitled to habeas relief on the basis of prosecutorial misconduct, the
petitioner must demonstrate that the prosecutor’s improper conduct “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright,
477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “[T]he
touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). In evaluating the impact of the
prosecutor's misconduct, a court should consider the extent to which the claimed misconduct
tended to mislead the jury or prejudice the petitioner. See United States v. Young, 470 U.S. 1, 11–
12 (1985). The Supreme Court has described the Darden standard as “a very general one, leaving
courts ‘more leeway . . . in reaching outcomes in case-by-case determinations.’” Parker v.
Matthews, 567 U.S. 37, 48 (2012). The Parker Court rejected an attempt to graft any additional
requirements on the “very general” Darden standard.
41

“Claims of prosecutorial misconduct are reviewed deferentially on habeas review.”
Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344 F.3d 487,
512 (6th Cir. 2003)). Indeed, “[t]he Supreme Court has clearly indicated that the state courts have
substantial breathing room when considering prosecutorial misconduct claims because
‘constitutional line drawing [in prosecutorial misconduct cases] is necessarily imprecise.’” Slagle
v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006) (quoting Donnelly, 416 U.S. 637, 645). Thus, in order
to obtain habeas relief on a prosecutorial misconduct claim, a habeas petitioner must show that the
state court’s rejection of his prosecutorial misconduct claim “was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Parker, 567 U.S. at 47 (internal quotation marks omitted).
Petitioner provides no factual support for his claim of prosecutorial misconduct. However,
in his Rule 6.500 motion, Petitioner alleged that the prosecutor committed misconduct by: (1)
denigrating the defense; (2) mischaracterizing the reasonable doubt standard; (3) making false
assertions during opening statements; (4) invading the province of the jury by stating that a person
depicted in the video of the robbery was Petitioner; and (5) intimidating the Walgreen’s clerk into
testifying. (ECF No. 12-15, PageID.1342–1355.) The Court construes Petitioner’s prosecutorial
misconduct claim to incorporate the five alleged instances of misconduct set forth in his Rule 6.500
motion. Although Petitioner raised those five instances in his Rule 6.500 motion, the trial court
only addressed one of them—Petitioner’s argument regarding intimidation of the witness. The
Court, therefore, will review that claim under AEDPA’s deferential standard and will review the
other four alleged instances of misconduct de novo.

42

1.

Denigration of the Defense

Petitioner first suggests that the prosecutor committed misconduct by denigrating the
defense during opening statements. (ECF No. 12-15, PageID.1342.) Petitioner contends that the
prosecutor suggested that Petitioner’s case could not be taken seriously by likening it to the novel
A Series of Unfortunate Events by Lemony Snicket. (Id.) Petitioner also suggests that the
prosecutor attacked Petitioner’s counsel’s credibility. (Id.) Specifically, Petitioner takes issue with
the following comments:
I—I don’t compare it to this, but I think of the name Lemony Snicket’s, “A Series
of Unfortunate Events.” For this to be a mistaken identity, and I have great respect
for Mr. Pyrski, okay, in my head I’m thinking how is he going to get up there with
this evidence and with a straight face and say it’s not my client? Either Mr. Wood
is the single most unfortunate man in Kent County history, because these incidents
are six days apart, so either he’s the most unfortunate man because he happens to
be wearing a Knicks hat that has his DNA on it, and then six days later, weirdly
enough, he’s wearing the same exact outfit that an armed—an armed robber does,
has on at Walgreen’s—or, excuse me, at the Marathon gas station, he’s wearing the
same exact outfit, weirdly enough, and then we have at least four people identify
him as the armed robbery suspect. So he is either the most unfortunate man or we
have no mistaken identity and we know who this perpetrator is.
(Trial Tr. II, ECF No. 12-9, PageID.1125.)
A prosecutor may not “make unfounded and inflammatory attacks on the opposing
advocate.” United States v. Young, 470 U.S. 1, 9 (1985). Furthermore, it is improper for a
prosecutor to argue that defense counsel “is attempting to mislead the jury.” West v. Bell, 550 F.3d
542, 565 (6th Cir. 2008) (citation omitted). Upon review of the remarks made by the prosecutor,
the Court cannot agree with Petitioner that they constituted “unfounded and inflammatory attacks”
and argument that Petitioner’s counsel was attempting to mislead the jury. Rather, the remarks
“were not so much a personal attack on counsel as a commentary on the strength of the merits of
[Petitioner’s] defense.” United States v. Graham, 125 F. App’x 624, 634 (6th Cir. 2005).
43

Moreover, the prosecutor simply mentioned A Series of Unfortunate Events as support for an
assertion that Petitioner’s suggestion that this involved a case of mistaken identity made him the
most unfortunate person to be mistaken as the perpetrator of two robberies that occurred six days
apart. The Court, therefore, does not conclude that these comments rise to the level of prosecutor
misconduct, and Petitioner is not entitled to habeas relief with respect to this aspect of habeas
ground X.
2.

Mischaracterization of the Reasonable Doubt Standard

Next, Petitioner suggests that the prosecution mischaracterized the reasonable doubt
standard during voir dire. (ECF No. 12-15, PageID.1343.) Petitioner faults the prosecutor for
“want[ing] the jury to wholeheartedly buy into his characterization of reasonable doubt as being
not that serious, it’s very flawed and okay to not hold him to a higher standard.” (Id., PageID.1344.)
Specifically, Petitioner contends that the prosecutor made numerous statements indicating that the
“beyond a reasonable doubt” standard is not “a hundred percent certain” and that he asked
numerous prospective jurors if they could hold the prosecution to that standard and not one that’s
higher. (Id.)
“[A]rguments of counsel generally carry less weight with a jury than do instructions from
the court,” and prosecutorial misrepresentations “are not to be judged as having the same force as
an instruction from the court.” Boyde v. California, 494 U.S. 370, 384–85 (1990). Furthermore,
“the Constitution does not require that any particular form of words be used in advising the jury
of the government’s burden of proof.” Victor v. Nebraska, 511 U.S. 1, 5 (1994). After reviewing
the prosecutor’s statements made during voir dire, the Court cannot conclude that they “so infected
the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477
U.S. at 181 (quoting Donnelly, 416 U.S. at 643). The prosecutor did not speak erroneously when
44

he repeatedly asked jurors if they would hold him to the proper standard and not a higher one
requiring 100% certainty. Rather, the prosecutor defined the standard using phrases that the
prospective jurors could readily understand. Moreover, during final jury instructions, the trial court
instructed the jury that the “lawyers’ statements and arguments, and any commentary, are not
evidence.” (Trial Tr. IV, ECF No. 12-11, PageID.1197.) A jury is presumed to follow its
instructions. See Weeks v. Angelone, 528 U.S. 225, 234 (2000). For these reasons, Petitioner is not
entitled to federal habeas relief with respect to this assertion of prosecutorial misconduct.
3.

False Assertions During Opening Statements

Next, Petitioner faults the prosecutor for making false statements and misrepresentations
regarding the evidence and testimony during opening arguments. (ECF No. 12-15, PageID.1346.)
First, Petitioner faults the prosecution for “falsely stat[ing] to the jury that the witnesses will testify
that Mr. Wood had a gun and that they were scared.” (Id.) Petitioner also suggests that the
prosecution falsely noted during opening statements that law enforcement “found a Knicks hat,
that the Knicks hat had the DNA of Mr. Wood on it, and the same hat can be seen being worn by
Mr. Wood in the video of the robbery.” (Id., PageID.1347.)
During opening statements, the prosecutor stated: “But both victims are going to testify to
the fact that the defendant told them he had a gun.” (Trial Tr. II, ECF No. 12-9, PageID.1124.)
The prosecutor also noted both the Marathon clerk and video of the Marathon robbery would show
that the suspect was wearing a Knicks hat. (Id.) Moreover, the prosecutor stated that the clerk
would testify that “[s]he’s scared, she can see he has a gun, so she’s not fighting and not putting
up a fuss.” (Id.) Shortly thereafter, the prosecutor indicated that the jury heard testimony that after
the suspect ran from the store, law enforcement found the same Knicks hat in an area close to the
Marathon. (Id.)
45

When the Walgreen’s clerk testified, she said that Petitioner told her that he had a gun, but
that he did not display it. (Id., PageID.1128.) The prosecutor asked the clerk if it was “[her] belief
at the time that [Petitioner] had a gun,” and she responded, “I wasn’t sure.” (Id.) When asked if
she was scared at the time, she responded, “Uh, yeah. That was the first time I’d ever been robbed,
so--.” (Id.) Moreover, the Marathon clerk testified that Petitioner was acting like he had a gun.
(Trial Tr. III, ECF no. 12-10, PageID.1166.) When asked if she was scared at the time, she
responded, “Uh, more mad.” (Id.) With respect to the Knicks hat, the Walgreen’s clerk could not
recall if any of the customers had on “any form of hat like a Knicks hat or anything like that on.”
(Trial Tr. II, ECF No. 12-9, PageID.1127–1128.) She thought that the suspect was wearing a
beanie, but noted that he also had the hood of his “thick winter jacket” pulled up. (Id.,
PageID.1128.)
Given these statements, the Court cannot conclude that the prosecutor so misrepresented
the expected testimony during closing arguments such that the comments “so infected the trial
with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at
181 (quoting Donnelly, 416 U.S. at 643). “Not every variance between the advanced description
of the prosecutor in the opening statement of the summary of the testimony that he or she expects
to introduce, and the actual presentation constitutes a violation of the right to confrontation or
reversible error, when a proper limiting instruction is given.” Redding v. Horton, No. 19-13599,
2021 WL 1720899, at *6 (E.D. Mich. Apr. 30, 2021) (citing Frazier v. Cupp, 394 U.S. 731, 736
(1969)). As discussed supra, the trial court instructed the jury that the lawyers’ statements do not
constitute evidence, and the jury is presumed to follow its instructions. See Weeks, 528 U.S. at
234. Petitioner, therefore, is not entitled to relief with respect to this assertion of prosecutorial
misconduct.
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4.

Invading the Province of the Jury

Next, Petitioner suggests that the prosecutor “invaded the province of the jury by stating
that the person depicted in the video of the robbery is in fact Mr. Wood.” (ECF No. 12-15,
PageID.1350.) During opening statements, the prosecutor made several statements that the jury
would see an individual who looked like Petitioner in video footage and still photos made from
that footage. (Trial Tr. II, ECF No. 12-9, PageID.1124–1125.) Petitioner also references numerous
statements made by the prosecutor during questioning of witnesses, including asking them whether
the individual in the video looked exactly like Petitioner. (ECF No. 12-15, PageID.1352–1354.)
Again, the Court cannot conclude that these statements and remarks by the prosecutor
invaded the province of the jury such that they “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Darden, 477 U.S. at 181 (quoting Donnelly, 416
U.S. at 643). During opening statements, the prosecutor simply indicated his belief that numerous
witnesses would testify that the individual depicted in the surveillance video looked quite similar
to Petitioner. Moreover, the prosecutor asked the witnesses whether, in their opinion, the individual
in the video looked identical or similar to Petitioner. Again, the trial court instructed the jury that
the lawyers’ arguments and questions are not evidence, and the jurors are presumed to follow their
instructions. See Weeks, 528 U.S. at 234. The Court cannot conclude from the record before it that
the prosecutor invaded the province of the jury by making these comments and statements;
accordingly, Petitioner is not entitled to relief with respect to this assertion of prosecutorial
misconduct.
5.

Intimidation of Witness

Finally, Petitioner suggests that the prosecutor committed misconduct by intimidating the
Walgreen’s clerk into testifying. The trial court rejected this claim, stating:
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[Petitioner] next argues that the prosecutor intimidated the Walgreen’s robbery
witness into testifying as she did at the preliminary examination. The Court
disagrees. The testimony that [Petitioner] points to only establishes that the
detectives informed the witness of the consequences of failing to appear at the
preliminary examination. Pursuant to MCR 2.506(E)(1), “[i]f a person fails to
comply with a subpoena . . . the failure may be considered a contempt of court by
the court in which the action is pending.”[] Moreover, there is no evidence to
support [Petitioner’s] assertion that the detectives threatened or intimidated the
witness to alter her testimony in any way. The transcript of the preliminary
examination reveals only that the detective indicated to the witness that she could
be put in jail if she did not appear. Although perhaps inappropriate, the detective’s
warning did not deprive [Petitioner] of his constitutional right to a fair trial.
(ECF No. 12-16, PageID.1427.)
During the August 9, 2017, preliminary examination, the Walgreen’s clerk indicated during
recross that the first time she had heard from the police was a week before the hearing. (ECF No.
12-6, PageID.1066.) When asked what occurred during that contact, the witness stated: “They told
me I had to be here, or I was gonna be in jail with him, so I’m here.” (Id.) After the conclusion of
testimony, the trial court suggested “that the detectives work on their delivery.” (Id., PageID.1067.)
Upon review of the record, the Court cannot conclude that this alleged instance of
misconduct “so infected the trial with unfairness as to make the resulting conviction a denial of
due process.” Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643). As the trial court
noted, there is no evidence that the detectives threatened or intimidated the Walgreen’s clerk to
testify in a certain way at the preliminary examination. Because Petitioner has not demonstrated
that the trial court’s rejection of this assertion of prosecutorial misconduct is contrary to, or an
unreasonable application of, clearly established federal law, Petitioner is not entitled to relief with
respect to this aspect of habeas ground X.

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In sum, Petitioner has not demonstrated that the prosecutor committed misconduct in any
of the five alleged instances discussed above. Accordingly, Petitioner is not entitled to relief with
respect to habeas ground X.
G.

Ground XI—Cumulative Error

Petitioner’s eleventh and final ground for relief is that he was denied a fair trial because of
the cumulative effect of the errors alleged in grounds I through X. (Pet., ECF No. 1, PageID.64.)
Petitioner raised a cumulative error claim in his Rule 6.500 motion. (ECF No. 12-15,
PageID.1327.) The trial court, however, did not explicitly address that claim in its opinion and
order denying Petitioner’s Rule 6.500 motion.
Under the AEDPA, a court may only grant habeas relief based on a misapplication of
Supreme Court law. See Bailey, 271 F.3d at 655. The Sixth Circuit has noted that “[i]ndividually
non-prejudicial errors, when taken together, may result in a fundamentally unfair trial that violates
a defendant's due process rights.” United States v. Stuckey, 253 F. App’x 468, 492 (6th Cir. 2007)
(citing United States v. Pierce, 62 F.3d 818, 834–35 (6th Cir. 1995)); see also Cockream v. Jones,
382 F. App'x 479, 486 (6th Cir. 2010) (noting that “only actual errors may combine to generate
cumulative prejudice”); United States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004) (setting forth
that aggregated harmless errors require reversal in situations where “the combined effect . . . was
so prejudicial as to render [a] trial fundamentally unfair”). Here, however, Petitioner has not
convinced this Court that any errors occurred during his criminal proceedings. Petitioner,
therefore, is not entitled to relief on habeas ground XI.
IV.

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
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“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, 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. Moreover, although Petitioner has failed to demonstrate that he is in custody in
violation of the Constitution and has failed to make a substantial showing of the denial of a
constitutional right, the Court does not conclude that any issue Petitioner might raise on appeal
would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962).

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Conclusion
The Court will enter an order and judgment denying the § 2254 petition as well as a
certificate of appealability.

Dated:

August 28, 2024

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

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