Bell #717469 v. MacLaren

Filing 26

OPINION and ORDER ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cmb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

BRANDON BELL,
Petitioner,
v.

Case No. 2:13-CV-166
HON. R. ALLAN EDGAR

DUNCAN MacLAREN,
Respondent.
________________________________/
OPINION & ORDER
Petitioner filed this § 2254 petition for writ of habeas corpus challenging the
validity of his state court conviction for violations of his constitutional rights. PageID.6-7, 9-10,
12-13. On February 16, 2009, Petitioner was convicted by a jury of two counts of armed robbery
(MICH. COMP. LAWS § 750.529) and two counts of possession of a firearm during the
commission of a felony (MCL § 750.227b). PageID.1-2. Petitioner was sentenced as a second
habitual offender to nine to thirty years for the armed robbery convictions and two years for each
felony firearm conviction. PageID.1. Petitioner remains in the custody of the Michigan
Department of Corrections (MDOC).
After his conviction, Petitioner filed an application for leave to appeal in the
Michigan Court of Appeals on September 24, 2009. PageID.2. The Court of Appeals denied
Petitioner’s application and affirmed his conviction on July 27, 2010. Id. Petitioner then filed an
application for leave to appeal to the Michigan Supreme Court, which was denied on March 8,
2011. Id.

Petitioner filed a motion for relief from judgment in the trial court pursuant to
Michigan Court Rule 6.500, which was denied on June 11, 2012. PageID.3. Petitioner then
sought review of his motion for relief from judgment from the Michigan Court of Appeals, who
denied his request for relief on September 25, 2012. PageID.4. Petitioner next requested review
of his motion from the Michigan Supreme Court, which was also denied on April 1, 2013. Id.
Petitioner did not appeal to the United States Supreme Court; rather, he filed a
habeas petition with this Court on May 10, 2013. ECF No. 1. Petitioner maintains that his
convictions were based on violations of his state and federal rights. Petitioner sets forth the
following claims for relief:
I. The evidence was insufficient to find Petitioner guilty beyond a
reasonable doubt of armed robbery or assault with intent to rob.
II. Petitioner was denied a fair trial where the trial judge failed to sua
sponte instruct the jury on the law of receiving and concealing stolen
property in violation of MCL 750.535/or in the alterative counsel was
ineffective for failing to request said instruction.
III. Petitioner was denied equal protection of the law under Baston v.
Kentucky, 476 US 79 (1986) when the prosecutor exercised
peremptory challenges to exclude a potential juror based on her race.
IV. Petitioner submits that he is actually innocent of the charges for
which he stands convicted of, where the video tapes show[] he was
not part of the robbery.
V. Where trial counsel failed to investigate, or contact [a] witness,
failed to present Petitioner’s actual innocence defense, Petitioner was
denied the effective assistance of counsel guaranteed [to] him under
the Sixth Amendment to the United States Constitution.
VI. Where Petitioner has obtained newly presented evidence in the
form of a sworn affidavit from Lovell Cambrick, who states that he
was present when the robbery took place and that Petitioner played no
role in the robbery of the victims, Petitioner Bell is entitled to a new
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trial where he is actually innocent of the crime for which he stands
convicted. Petitioner further submits that he was denied effective
assistance of counsel where counsel failed to investigate and produce
Mr. Cambrick at trial.1
PageID.6-7, 9-10, 12-13. Respondent filed a response to Petitioner’s habeas application on
December 4, 2013. ECF No. 9. Petitioner then filed a reply on January 17, 2014. ECF No. 24.
The matter is now ready for a decision.
I.
Petitioner filed this petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996. PUB. L. 104-132, 110 STAT. 1214 (AEDPA); Bell v. Cone,
535 U.S. 685, 693-94 (2002) (noting that AEDPA prevents federal habeas “retrials” and ensures
state convictions are made under state law). 28 U.S.C. § 2254(d) provides that any habeas
application by a person in state custody shall not be granted in regards to any claim that has
previously been 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 on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).
This Court may only consider “clearly established holdings” of the Supreme
Court, not lower federal courts, in analyzing a petitioner’s claim under § 2254. Williams v.
Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). A

1

Because claim VI and claim IV are related to actual innocence, they will be discussed at the same time.

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decision of the state court may only be overturned if: (1) it applies a rule contradicting Supreme
Court governing law, (2) it contradicts a set of facts materially indistinguishable from a Supreme
Court decision, (3) it unreasonably applies correct Supreme Court precedent to the facts of the
case, (4) it unreasonably extends Supreme Court legal principles where it should not apply, or (5)
it unreasonably refuses to extend Supreme Court legal principle where it should apply. Bailey,
271 F.3d at 655; see also Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003).
A federal habeas court may not find a state adjudication to be “unreasonable”
simply because that court decides, in its own judgment, that the relevant state decision applied
federal law incorrectly. Williams, 529 U.S. at 410-11 (noting that it must instead determine if the
state court’s application of clearly established federal law was “objectively unreasonable”). This
Court defers to state court decisions when the state court addressed the merits of petitioner’s
claim. Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); see Wiggins v. Smith, 539 U.S. 510,
534 (2003) (allowing review of habeas application de novo when state court clearly did not reach
the question). When applying AEDPA to state factual findings, factual issues by state courts are
presumed correct unless the petitioner rebuts the presumption with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429.
After applying the standards under AEDPA to Petitioner’s case, this Court
concludes that Petitioner has not provided clear and convincing evidence that the state court
improperly applied clearly established federal law to the facts of Petitioner’s case.
II.
Petitioner claims that his convictions are in violation of his constitutional rights.
The Court reviews each of Petitioner’s claims individually.
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A. Insufficient Evidence
Petitioner’s first claim is that “[t]he evidence was insufficient to find Petitioner
guilty beyond a reasonable doubt of armed robbery or assault with intent to rob.” PageID.6.
Specifically, Petitioner argues that the video clearly shows that Petitioner was holding a Coke
can, not a gun, (which was mentioned by one of the witnesses during trial), meaning there is
insufficient evidence that Petitioner was more than “merely present” during the commission of
this armed robbery. PageID.160-161.
A § 2254 challenge to the sufficiency of the evidence is governed by the standard
set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979), which is
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
This standard of review recognizes the trier of fact’s responsibility to resolve reasonable conflicts
in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts. Id. Issues of credibility may not be reviewed by the habeas court under this
standard. See Herrera v. Collins, 506 U.S. 390, 401-02 (1993). Rather, the habeas court is
required to examine the evidence supporting the conviction, in the light most favorable to the
prosecution, with specific reference to the elements of the crime as established by state law.
Jackson, 443 U.S. at 324 n.16; Allen v. Redman, 858 F.2d 1194, 1196-97 (6th Cir. 1988). The
Jackson v. Virginia standard “gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson, 443 U.S. at 319.
Moreover, because both the Jackson standard and AEDPA apply to Petitioner’s
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claims, “‘the law commands deference at two levels in this case: First, deference should be
given to the trier-of-fact’s verdict, as contemplated by Jackson; second, deference should be
given to the Michigan [trial court’s] consideration of the trier-of-fact’s verdict, as dictated by
AEDPA.’” Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc) (quoting Tucker v.
Palmer, 541 F.3d 652, 656 (6th Cir. 2008)). This standard erects “a nearly insurmountable
hurdle” for petitioners who seek habeas relief on sufficiency-of-the-evidence grounds. Id. at 534
(quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).
In the Michigan Court of Appeals’ decision denying Petitioner’s direct appeal, the
court indicated that there was sufficient evidence for a jury to convict Petitioner of armed
robbery:
Defendant first challenges the sufficiency of the evidence to sustain
his armed robbery convictions. We review sufficiency of the
evidence claims de novo, viewing the evidence in the light most
favorable to the prosecution to determine if the evidence was
sufficient for a rational jury to find the defendant guilty beyond a
reasonable doubt.
The offense of armed robbery includes: “(1) an assault, (2) a
felonious taking of property from the victim’s presence or person, (3)
while the defendant is armed with a weapon described in the statute.”
The elements of aiding and abetting include: (1) the offense charged
was committed by the defendant or some other person; (2) the
defendant performed acts or gave encouragement to assist the
commission of the offense; and (3) the defendant intended to commit
the offense or had knowledge that the principal intended its
commission at the time the defendant gave aid and encouragement.
On appeal, defendant does not challenge any particular element of the
charged offense, but rather asserts that the video recording of the
Chicken Coop’s surveillance system admitted at trial does not support
the victims’ testimony that defendant pointed a gun at them during
the robbery. As previously stated, the video recording clearly depicted
defendant with a handgun in his right hand. While the view was
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blocked to a certain extent, it was reasonably clear that defendant
pointed his handgun at one victim during the armed robbery. Further,
a photograph admitted at trial depicted defendant pointing his
handgun at the other victim. The video recording does not clearly
show that defendant or coconspirator Robert Echols removed any
property from the victims; however, both defendant and Echols were
in very close proximity with the victims in the Chicken Coop’s
parking lot. Additionally, the video recording depicted Echols either
frisking or reaching towards the victims’ bodies at various points.
Notably, the victims testified that defendant and Echols pointed
handguns at the victims. While defendant pointed his handgun at the
victims, Echols took a handgun and two necklaces from the victims.
One victim testified that during the armed robbery, defendant
repeatedly stated “[t]hat’s how we do it in Chi-town.” When the
police photographed defendant on July 19, 2008, he was wearing one
of the victim’s necklaces. It was for the jury, as factfinder, to
determine the weight of the evidence and credibility of the witnesses.
In this case, the elements of armed robbery were satisfied, where it
was undisputed that Echols committed an assault on the victims by
using his handgun to take their property. On appeal, defendant claims
that he put his handgun away, and merely observed Echols rob the
victims. However, the record directly refutes defendant’s claim. The
trial testimony, video recording, and photographs demonstrate that
defendant performed acts to assist Echols in the armed robbery,
namely, defendant used a handgun to assist in facilitating the armed
robbery. The evidence supports that defendant was aware of Echols’
intent to commit armed robbery at the time defendant gave assistance.
“An aider and abettor’s state of mind may be inferred from all the
facts and circumstances.” “Factors that may be considered include a
close association between the defendant and the principal, the
defendant’s participation in the planning or execution of the crime,
and evidence of flight after the crime.” Here, defendant threatened the
victims inside the Chicken Coop by stating that he would put a hole
in their heads. As noted previously, he clearly participated in the
execution of the armed robbery. We defer to the jury’s credibility
determinations and any conflicts in the evidence must be resolved in
favor of the prosecution. Viewing the evidence in a light most
favorable to the prosecution, we conclude that a rational trier of fact
could have found that all of the elements of armed robbery under an
aiding and abetting theory were proved beyond a reasonable doubt.
Defendant, in his standard 4 brief, also challenges the sufficiency of
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the evidence . . . . Defendant’s challenge[] lacks merit. As previously
stated, the evidence admitted at trial coupled with the testimony of the
victims was more than sufficient evidence to sustain defendant’s
armed robbery convictions under an aiding and abetting theory.
Contrary to defendant’s assertions, the record is devoid of any
evidence that defendant was merely a spectator, or that he was
innocent.
People v. Bell, No. 290691, 2010 WL 2925349, at **1-3 (Mich. Ct. App. July 27, 2010)
(citations omitted). The Courts of Appeals’ decision is thorough and complete, and it does not
improperly apply a rule that contradicts Supreme Court precedent, nor does it contradict a set of
facts that are materially indistinguishable from a Supreme Court decision. Bailey, 271 F.3d at
655.
As the appellate court noted, there is sufficient evidence for a reasonable trier of
fact to conclude that Petitioner was more than merely present during the commission of the
armed robbery. See Jackson, 443 U.S. at 324 n.16 (noting the habeas court examines the
evidence supporting the conviction, in the light most favorable to the prosecution, with specific
reference to the elements of the crime as established by state law); see also Brown v. Palmer, 441
F.3d 347, 351 (6th Cir. 2006) (“[M]ere presence, or even knowledge, that a crime is about to be
committed is insufficient to prove guilty under an aiding-and-abetting theory [for armed robbery
in Michigan].”). For example, Petitioner was identified in a lineup by one of the victims (ECF
No. 14 at 67-68), was witnessed wearing one of the stolen necklaces at a club (ECF No. 14 at 6465), was witnessed to have had a gun during the night of the robbery (ECF No. 14 at 80-81), and
was said to have threatened to “put a bullet” in the heads of the victims on the night of the crime
(ECF No. 14 at 78). Based on this evidence, and the appellate court’s recitation of the evidence
presented at trial, it is clear that a rational trier-of-fact could conclude that Petitioner was more
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than merely present during the armed robbery. See Jackson, 443 U.S. at 319, 334 (noting the
standards as: “[A]fter viewing the evidence in the light most favorable to the prosecution, [could]
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt[?]”) (emphasis in original). As a result, Petitioner’s first claim fails.
B. Jury Instruction
Petitioner’s next claim has two parts: (1) “Petitioner was denied a fair trial where
the trial judge failed to sua sponte instruct the jury on the law of receiving and concealing stolen
property in violation of MCL 750.535”; or, in the alternative (2) Petitioner’s “counsel was
ineffective for failing to request said instruction.” PageID.7. Petitioner claims that because
“[t]here was testimony from the victim that a month or so after the [armed robbery] he saw
Petitioner wearing a necklace taken from the robbery . . . . [that] there was evidence to support an
instruction on Receiving and Concealing Stolen Property.” Id. Moreover, he claims that the jury
would not have convicted him of armed robbery if they had been able to consider the crime of
receiving and concealing stolen property. Id.
While there is a persuasive argument that Petitioner has procedurally defaulted
this claim by waiving any objections to the jury instructions during trial, the Court will decide
this issue on the merits. See Hudson v. Jones, 351 F.3d 212, 215-16 (6th Cir. 2003) (noting that
where the procedural default issue raises more questions than the case on the merits, the Court
may assume without deciding that there was no procedural default or that Petitioner could show
cause and prejudice for that default); see also Cone v. Bell, 243 F.3d 961, 971 (6th Cir. 2001),
rev’d on other grounds, Bell, 535 U.S. at 685; Binder v. Stegall, 198 F.3d 177, 178 (6th Cir.
1999).
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As an initial matter, Petitioner’s jury instruction claim is not cognizable on habeas
review. The Supreme Court has held that courts must instruct the jury of any lesser-included
offenses in capital cases when failure to do so would result in the jury being given an “all or
nothing” choice of convicting or acquitting the defendant. Beck v. Alabama, 447 U.S. 625, 63738 (1980) (noting the court must raise the instruction sua sponte). However, “the Constitution
does not require a lesser-included offense instruction in non-capital cases.” Campbell v. Coyle,
260 F.3d 531, 541 (6th Cir. 2001). A trial court’s failure to raise a lesser included offense, even
if one is requested, is in general “not an error of such magnitude to be cognizable in federal
habeas corpus review.” Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir. 1980) (en banc).
Moreover, there is no clearly established Supreme Court precedent requiring “a trial court to
provide a [] lesser included offense instruction in the non-capital context, as is required for
habeas relief under § 2254(d)(1).” Brewster v. Davis, No. 06-10766-BC, 2011 WL 1135755, at
*6 (E.D. Mich. Mar. 28, 2011) (citation omitted).
Even if this claim were cognizable on habeas review, Petitioner’s claim would fail
because he has not shown that the omitted jury instruction rendered the verdict fundamentally
unfair. See Estelle v. McGuire, 502 U.S. 62, 72 (1991) (“The only question for us is ‘whether the
ailing instruction by itself so infected the entire trial that the resulting conviction violates due
process.’”) (citations omitted). Petitioner raised this claim in his appeal of right to the Michigan
Court of Appeals. The appellate court was the last court to issue a reasoned opinion on this
claim, and the court denied the claim for the following reasons:
Next, defendant asserts that the trial court should have sua sponte
issued a jury instruction on receiving and concealing stolen property,
MCL 750.535, or alternately, that defense counsel rendered
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ineffective assistance of counsel for failing to request such an
instruction. We conclude that the allegation of instruction error is
waived, because defense counsel expressed satisfaction with the trial
court’s jury instructions. Moreover, defendant’s allegation of
instructional error lacks merit, because the trial court was not required
to sua sponte instruct the jury on the uncharged offense of receiving
or concealing stolen property.
A trial court’s jury instructions must include all of the elements of the
charged offense, and must not exclude any material issues, defenses,
or theories which are supported by the evidence. This Court
“examines the instructions as a whole, and, even if there are some
imperfections, there is no basis for reversal if the instructions
adequately protected the defendant’s rights by fairly presenting to the
jury the issues to be tried.”
A trial court is generally under no obligation to issue a jury
instruction on lesser-included offenses. Moreover, receiving and
concealing stolen property is not a necessarily included lesser offense
or even a cognate lesser offense of the charged offense. We reject
defendant’s argument that the trial court should have issued sua
sponte a jury instruction on the offense of receiving or concealing
stolen property, and we find that the trial court’s jury instructions
included all of the elements of the charged offense; they did not
exclude any material issues, defenses, or theories as supported by the
evidence. Accordingly, defendant has failed to establish error and
certainly has not established plain error.
Defendant also asserts that defense counsel was ineffective for not
requesting an instruction on receiving or concealing stolen property.
To sustain a claim of ineffective assistance of counsel, a defendant
must prove that defense counsel’s “performance was deficient” and
that deficiency “prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984).
Decisions regarding what instructions to request are left to defense
counsel’s discretion as a matter of trial strategy, and we will not
second-guess such decisions. The trial court’s jury instructions
included all of the elements of the charged offense, and they did not
exclude any material issues, defenses, or theories as supported by the
evidence. Moreover, as discussed previously, there is no indication
that defendant was entitled to a jury instruction on an uncharged
offense. It is well settled that counsel is not ineffective for failing to
advocate a meritless position.
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Bell, 2010 WL at 2925349, *3 (citations omitted). The appellate court’s decision is thorough,
complete, and consistent with Michigan law; and there is no Supreme Court precedent to the
contrary. See Bailey, 271 F.3d at 655; see also Campbell, 260 F.3d at 541 (“[T]he Constitution
does not require a lesser-included offense instruction in non-capital cases.”); cf. Beck, 447 U.S. at
637-38 (noting that in capital cases, a trial court must, sua sponte, include a lesser included
offense instruction). In addition, Petitioner’s trial attorney was not ineffective under the
Strickland v. Washington, 466 U.S. 668 (1984) standard by choosing not to request this
instruction. See, e.g., Tinsley v. Million, 399 F.3d 796, 808 (6th Cir. 2005) (noting that trial
counsel was not ineffective by failing to request a lesser included offense since “it was a
permissible exercise of trial strategy”). As a result, Petitioner has not demonstrated that not
presenting this jury instruction rendered his verdict fundamentally unfair. Thus, Petitioner’s
second claim fails.
C. Peremptory Challenge
Petitioner’s third claim is that he was “denied equal protection of the law under
Batson v. Kentucky, 476 US 79 (1986) when the prosecutor exercised peremptory challenges to
exclude a potential juror based on her race.” PageID.9. Petitioner argues that the prosecutor
“used her peremptory challenged to exclude the only African American from the jury based on
her race,” and that her only reasoning for dismissing that juror “was because she felt the juror had
not given a complete and forthright answer.” Id.
In Batson v. Kentucky, 476 U.S. 79, 96, (1986), the Supreme Court articulated a
three-step analysis to be applied to an Equal Protection Clause claim that purposeful
discrimination occurred in the selection of the petit jury based solely on the prosecutor’s exercise
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of his peremptory challenges at trial. See United States v. Bartholomew, 310 F.3d 912, 919 (6th
Cir. 2002). First, the Defendant must establish a prima facie case of racial discrimination. See
United States v. Copeland, 321 F.3d 582, 599 (6th Cir. 2003). This requires an initial showing
that “the defendant . . . is a member of a cognizable racial group . . . and that the prosecutor has
exercised peremptory challenges to remove from the venire members of the defendant’s race.”
Batson, 476 U.S. at 96 (citation omitted). “[T]he defendant is entitled to rely on the fact, as to
which there can be no dispute, that peremptory challenges constitute a jury selection practice that
permits ‘those to discriminate who are of a mind to discriminate.’” Id. (quoting Avery v.
Georgia, 345 U.S. 559, 562 (1953)). Ultimately, Petitioner, relying on this presumption and
other facts, must “raise an inference that the prosecutor used [a peremptory challenge] to exclude
the veniremen from the petit jury on account of their race.” Id.
Second, once the Defendant has raised the necessary inference, “the burden shifts
to the state to come forward with a neutral explanation for challenging [potential] jurors.” Id. at
97. “The government is not required to persuade the court that its reasons for dismissing the
juror were well-founded; rather it need only demonstrate that its reasons were race-neutral.”
Copeland, 321 F.3d at 599. More specifically, “[t]he second step of this process does not
demand an explanation that is persuasive or even plausible. ‘At this . . . step of the inquiry, the
issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’”
Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (quoting Hernandez v. New York, 500 U.S. 352,
360 (1991)).
Third, the party opposing the strike must demonstrate that the prosecutor’s
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purported explanation is merely a pretext for racial motivation. See McCurdy v. Montgomery
County, 240 F.3d 512, 521 (6th Cir. 2001) (describing the Batson test). Ultimately, the court
must determine “whether the defendant has carried his burden of proving purposeful
discrimination.” Hernandez, 500 U.S. at 359. In making this determination, the Court presumes
that the facially valid reasons proffered by the prosecution are true. Id. at 359-60. Racially
discriminatory purpose or intent must be affirmatively shown by the opponent of the strike. Id. at
360. The ultimate burden of persuasion always remains with the opponent of the strike. See
United States v. McFerron, 163 F.3d 952, 955 (6th Cir. 1998).
Notwithstanding this three-part test, however, the Supreme Court has held that the
question of whether a prima facie case has been established becomes moot once a court rules on
the ultimate question under Batson of whether there was purposeful discrimination. Hernandez,
500 U.S. at 360; Lancaster, 324 F.3d at 432-33. “Once a prosecutor has offered a race-neutral
explanation for the peremptory challenges and the trial court had ruled on the ultimate question
of intentional discrimination, the preliminary issue of whether the defendant had made a prima
facie showing becomes moot.” Hernandez, 500 U.S. at 359; Lancaster, 324 F.3d at 433.
Petitioner raised this equal protection claim in his direct appeal to the Michigan
Court of Appeals. The appellate court stated the following when denying Petitioner’s claim:
Fourth, defendant presents a fair-cross-section challenge related to his
jury but wrongly relies on Batson legal principles to support his
argument. Based on our thorough review of the record, we conclude
that even a generous reading of this issue provides no relief for
defendant. Here, he failed to set forth a prima facie violation of the
fair-cross-section requirement, where there is no indication that
African-Americans were underrepresented in the venire or jury pool,
and that underrepresentation was the result of systematic exclusion.
Duren v. Missouri, 439 U.S. 357, 364; 99 S.Ct. 664; 58 L.Ed.2d 579
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(1979); People v. Hubbard (After Remand), 217 Mich. App. 459, 474;
552 NW2d 493 (1996). Further, the trial court did not err in
determining that the prosecutor dismissed an African-American juror
for credible and race neutral reasons. People v. Knight, 473 Mich.
324, 344; 701 NW2d 715 (2005).
....
[D]efendant failed to establish a prima facie violation of the faircross-section requirement, where there is no indication that AfricanAmericans were underrepresented in the venire or jury pool, and that
underrepresentation was the result of systematic exclusion. Duren,
439 U.S. at 364. With respect to the Batson challenge, because the
prosecutor’s explanation was based on something other than the race
of the juror, the trial court properly deemed the explanation as race
neutral where no discriminatory intent was inherent in that
explanation. Knight, 473 Mich. at 337.
Bell, 2010 WL 2925349, at **5, 7 (footnote omitted). Again, the Michigan Court of Appeals’
decision on this issue is thorough and complete, and it does not inappropriately apply federal law
to the facts of Petitioner’s case. Bailey, 271 F.3d at 655; see also Lancaster, 324 F.3d at 429.
In regard to the first Batson step, Petitioner has made a prima facie showing of
discrimination. Petitioner points to the prosecutor’s voir dire questions posed to Juror 12 (a
Caucasian male) and Juror 13 (an African-American female). PageID.161, 163. Petitioner
claims that after both jurors indicated that they had been to the restaurant where the robbery took
place, the prosecutor engaged in discriminatory questioning by asking several more questions to
Juror 13 than to Juror 12. PageID.163. In addition, Petitioner noted that the prosecutor failed to
ask Juror 13 whether she had been in a courtroom before. PageID.161-162. As a result,
Petitioner claims that the prosecutor clearly used her peremptory challenge to exclude Juror 13
based on her race. PageID.161-163. Because a “prosecutor’s questions and statements during
voir dire examination” and exercise of challenges “may support” an inference of a discriminatory
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purpose, Petitioner has met the first prong of his Batson claim. Batson, 476 U.S. at 97.
Since Petitioner showed a prima facie case of a discriminatory peremptory
challenge, the burden shifts to Respondent to “come forward with a neutral explanation for
challenging [this juror].” Batson, 476 U.S. at 97. During voir dire, the trial judge asked that the
prosecutor to explain her reasons for excusing Juror 13, to which the prosecutor stated:
Prosecutor: Your Honor, I had asked [Juror 13] during my questions
what contact she had had with law enforcement, whether she had ever
been in a courtroom before, what kind of experiences she had with
the criminal justice system, and she indicated she was a victim in a
domestic assault case. She did not indicate that she had sat through a
trial, and had been in the courthouse quite recently for a trial. And I
felt that I wanted to dismiss her because she had not given a complete
and, I felt, forthright answer.
....
Trial Judge: The . . . rationale proffered by the prosecutor, and the
Court sustains as a legitimate basis, there were inquiries as to contact,
presence in the courtroom, and the juror didn’t say – she didn’t
disclose that she had been a juror, and I think that that’s a fair nondiscriminatory reason that has been articulated by the prosecution . .
. . I find it to be a non-discriminatory basis, and I respectfully decline
to sustain the Batson objection substantively in the event that it is
procedurally appropriate.
ECF No. 13 at 109-112. The prosecutor excused Juror 13 because the prosecutor did not find her
to be forthcoming in her answers, and the trial court sustained that position. Id. As a result, the
second step of Batson is satisfied.
Finally, to satisfy the third prong of Batson, Petitioner must show that the
prosecutor’s explanations in step two are a pretext for racial motivation. See McCurdy, 240 F.3d
at 521 (describing Batson test). Petitioner has not met this burden. Petitioner has not
affirmatively set forth any racially discriminatory purpose or intent by the prosecutor in striking
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Juror 13. See Hernandez, 500 U.S. at 359-60. As a result, Petitioner has not “carried his burden
of proving purposeful discrimination.” Id. at 359. Therefore, Petitioner’s Batson claim fails.
D. Actual Innocence and New Evidence
Next, Petitioner argues that “he is actually innocent of the charges for which he
stands convicted of,” and he requests that the Court consider his sixth claim (regarding newly
discovered evidence) when evaluating his actual innocence. As such, the Court will review both
Petitioner’s actual innocence claim and newly discovered evidence claim at this time. Petitioner
claims that he is actually innocent because the “video tapes show[] he was not part of the robbery
. . . . [and] that Petitioner Bell was merely present,” and because Petitioner “has obtained newly
presented evidence in the form of a sworn affidavit from Lovell Cambrick, who states that he
was present when the robbery took place and that Petitioner played no role in the robbery of the
victims.” PageID.10, 13.
Petitioner’s actual innocence claims are not cognizable on habeas review because
Petitioner does not “seek excusal of a procedural error so that he may bring an independent
constitutional claim challenging his convictions,” (such as procedural default); rather, Petitioner
“argues that he is entitled to habeas relief” because newly discovered evidence shows that his
conviction is factually incorrect. See Herrera, 506 U.S. at 404. 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, 506 U.S. at 400; see also McQuiggin v. Perkins,
133 S. Ct. 1924, 1931 (2013) (“We have not resolved whether a prisoner may be entitled to
habeas relief based on a freestanding claim of actual innocence.”). “This rule is grounded in the
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principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation
of the Constitution–not to correct errors of fact.” Herrera, 506 U.S. at 400. “Freestanding claims
of actual innocence [outside capital cases] are thus not cognizable on federal habeas review,
absent independent allegations of constitutional error at trial.” Jackway v. Woods, No. 15-CV11491, 2016 WL 304739, at *9 (E.D. Mich. Jan. 26, 2016) (citing Cress v. Palmer, 484 F.3d
844, 854-55 (6th Cir. 2007) (collecting cases)); see also Wright v. Stegall, 247 Fed. App’x 709,
711 (6th Cir. 2007). As a result, Petitioner is not entitled to relief under the available Supreme
Court precedent.
Nevertheless, even if this were a tenable actual-innocence claim, the Supreme
Court has held that actual innocence pleas are rare and seldom met. Schlup v. Delo, 513 U.S.
298, 321, 329 (1995); see also House v. Bell, 547 U.S. 518, 538 (2006) (noting that the Schlup
standard is seldom met and demanding). Moreover, Petitioner would have to show that in light of
his new evidence (an affidavit), “no reasonable juror would have found the defendant guilty.”
Schlup, 513 U.S. at 329. Here, Petitioner simply claims that the video tape showing him holding
a gun was misinterpreted by the trial court, as he claims he did not hold a gun during the armed
robbery. PageID.10. In addition, he claims that Mr. Cambrick’s affidavit further supports the
notion that Petitioner was merely present at the scene of the crime. PageID.13. However,
affidavits containing new statements from witnesses years after the crime and trial are inherently
suspect, and these statements are to be viewed with a “degree of skepticism.” Schlup, 513 U.S. at
331; see also Herrera, 506 U.S. at 423 (O’Connor, J., concurring). Therefore, Petitioner’s
evidence, at best, would provide a jury with one more witness (in addition to himself) that
believed Petitioner was merely present during the armed robbery. This information alone is
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insufficient to create reasonable doubt, or show that it is more likely than not that a jury would
find him not guilty, especially considering that Petitioner’s attorney made this argument to the
jury during trial. See Schlup, 513 U.S. at 329. As a result, Petitioner’s claims of actual
innocence fail.
E. Ineffective Assistance of Counsel
Petitioner’s next claim is that his trial counsel was ineffective for failing to: (1)
“investigate, or contact witness [Lovell Cambrick],” and (2) “present Petitioner’s actual
innocence defense.” PageID.12.
To establish a claim of ineffective assistance of counsel, the petitioner must
prove: (1) that counsel’s performance fell below an objective standard of reasonableness; and (2)
that counsel’s deficient performance prejudiced the defendant resulting in an unreliable or
fundamentally unfair outcome. A court considering a claim of ineffective assistance must
“indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. The defendant bears the burden of
overcoming the presumption that the challenged action might be considered sound trial strategy.
Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also Nagi v. United States, 90 F.3d
130, 135 (6th Cir. 1996) (holding that counsel’s strategic decisions were hard to attack). The
court must determine whether, in light of the circumstances as they existed at the time of
counsel’s actions, “the identified acts or omissions were outside the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690. Even if a court determines that counsel’s
performance was outside that range, the defendant is not entitled to relief if counsel’s error had
no effect on the judgment. Id. at 691.
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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 v. Richter, 562 U.S. 86, 105 (2011) (citing
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Burt v. Titlow, 134 S. Ct. 10, 13
(2013); Cullen v. Pinholster, 563 U.S. 170, 190 (2011); Premo v. Moore, 562 U.S. 115, 122
(2011). In those circumstances, 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).
Furthermore, where counsel’s performance did not fall below an objective
standard of reasonableness, the court need not reach the question of prejudice. See Campbell v.
United States, 364 F.3d 727, 730 (6th Cir. 2004) (quoting Strickland, 466 U.S. at 697) (“When
deciding ineffective-assistance claims, courts need not address both components of the inquiry ‘if
the defendant makes an insufficient showing on one.’”). “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.” Strickland, 466 U.S. at 697.
i. Failure to Investigate
In regard to Petitioner’s first claim of ineffective assistance of counsel (failure to
investigate and present a witness at trial), Petitioner has not shown that his attorney performed
deficiently under the first Strickland prong. It is well established that “[c]ounsel has a duty to
make reasonable investigations or to make a reasonable decision that makes particular
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investigations unnecessary.” Strickland, 466 U.S. at 691. This duty includes the obligation to
investigate all witnesses who may have information concerning his or her client’s guilt or
innocence. Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). However, in general, “[d]ecisions
as to what evidence to present and whether to call or question witnesses are presumed to be a
matter of trial strategy, and the failure to call witnesses or present other evidence can constitute
ineffective assistance of counsel only when it deprives the defendant of a substantial defense.”
Chegwidden v. Kapture, 92 Fed. App’x 309, 311 (6th Cir. 2004); see also Roe v. Flores-Ortega,
528 U.S. 470, 481 (2000) (“The relevant question is not whether counsel’s choices were
strategic, but whether they were reasonable.”); Jones v. Davis, No. 05CV70897DT, 2006 WL
1452505, at *6 (E.D. Mich. May 23, 2006) (citing People v. Jones, No. 237174, 2003 WL
22138013, at **3-4 (Mich. Ct. App. Sept. 16, 2003) (“A defense is substantial if it might have
made a difference in the outcome of the trial.”)).
Here, Petitioner has not overcome the strong presumption that his trial attorney
strategically decided not to call Lovell Cambrick to testify at trial. Strickland, 466 U.S. at 689. It
is clear, based on Petitioner’s attorney’s performance at trial, that Petitioner was not deprived of
a defense when his attorney chose not to call Mr. Cambrick to testify. For example, Petitioner’s
attorney pursued the defense of mere presence (which is the theory Petitioner claims Mr.
Cambrick would have supported) as he thoroughly cross-examined both of the victims to the
robbery and an officer. ECF No. 14 at 100-133, 168-212, 224-233. With that in mind, it would
have been redundant to call Mr. Cambrick to testify when Petitioner’s attorney had already
thoroughly presented the defense of mere presence to the jury. See PageID.142-143. Based on
this information, it is clear that Petitioner was not deprived of a substantial defense based on his
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attorney’s decision not to call Mr. Cambrick to testify at trial—meaning his attorney did not
perform deficiently. See Strickland, 466 U.S. at 689 (noting the petitioner mut overcome the
strong presumption that his attorney’s “challenged action [or inaction] might be considered
sound trial strategy.”). Because Petitioner has not demonstrated deficient performance under
Strickland, the Court need not touch on the second prong (prejudice). See Campbell, 364 F.3d at
730 (quoting Strickland, 466 U.S. at 697).
ii. Actual Innocence Defense
Petitioner’s second claim of ineffective assistance of counsel alleges that his trial
counsel was ineffective by not pursuing the “actual innocence” defense at trial. PageID.12-13.
Specifically, Petitioner claims that his attorney should have argued that he was holding a Coke
bottle, not a gun, and that he played no part in the robbery. PageID.12.
The Sixth Amendment provides a criminal defendant with the right “to have the
Assistance of Counsel for his defense.” U.S. CONST., amend. VI. However, the right of an
accused to present a defense is not unlimited, and it may be subject to reasonable restrictions. See
Washington v. Texas, 388 U.S. 14, 19 (1967); see also United States v. Scheffer, 523 U.S. 303,
308 (1998). “Where defense counsel entirely fails to subject the prosecution’s case to
‘meaningful adversarial testing,’ there has been a constructive denial of counsel, and a defendant
need not make a showing of prejudice to establish ineffective assistance of counsel.” Haywood v.
Booker, No. 2:06-CV-10927, 2009 WL 817647, at *5 (E.D. Mich. Mar. 27, 2009) (quoting Moss
v. Hofbauer, 286 F.3d 851, 860 (6th Cir. 2002) and United States v. Cronic, 466 U.S. 648, 659
(1984)). This presumption “applies only where defense counsel completely or entirely fails to
oppose the prosecution throughout the guilt or penalty phase as a whole.” Benge v. Johnson, 474
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F.3d 236, 247 (6th Cir. 2007) (emphasis in original) (citing Bell, 533 U.S. at 697).
Here, Petitioner has failed to demonstrate that his attorney performed deficiently
by failing to present the “actual innocence” theory of defense. In fact, upon review of the
transcripts, it appears as though Petitioner’s attorney argued precisely what Petitioner is currently
asking for in his habeas petition. For example, Petitioner claims his attorney should have argued
to the jury that Petitioner was holding a Coke bottle, not a gun, before the necklaces were stolen
on the night of the robbery. PageID.12. However, his attorney did make this argument during
his opening statement (ECF No. 14 at 30-31 (“[T]he video will show that [Petitioner] did not
participate [in the robbery],” “[Petitioner] did not take the necklaces,” and although it may look
like Petitioner was holding something in his hands for a second and a half in the video, he
physically could not have been)), during cross-examination of a victim (ECF No. 14 at 120-121
(“Q: What did you see? A: I don’t know, it’s not clear enough. Maybe a Coke.” . . . . “Q: How
about now? A: Yes, it looks like a Coke. Q: All right, he had a Coke in his left hand, correct? A:
Mm-hmm.”)), and in his closing argument (ECF No. 14 at 48 (“The other things I want you to
keep aware of is that my client had a drink in his left hand pretty much the whole time. Okay? He
had it inside, and he had it outside.”), 50 (“I . . . argue to you [in] the strongest sense that I
possibly can my client didn’t participate.”). Therefore, Petitioner’s attorney clearly set forth the
defense that Petitioner now claims he should have argued. As a result, Petitioner has not
demonstrated deficient performance since he has not shown that he was deprived of a substantial
defense. See Campbell, 364 F.3d at 730 (quoting Strickland, 466 U.S. at 697) (“When deciding
ineffective-assistance claims, courts need not address both components of the inquiry ‘if the
defendant makes an insufficient showing on one.’”). Consequently, Petitioner’s second
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ineffective assistance of counsel claim fails.
III.
This Court concludes that all of Petitioner’s claims are without merit. Should
Petitioner choose to appeal this action, the Court must determine whether a certificate of
appealability may be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of
appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Each issue must be considered
under the standards set forth in Slack v. McDaniel, 529 U.S. 473 (2000). Under Slack, 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.” Slack, 529 U.S. at
484. The Court examined each of Petitioner’s claims under the Slack standard and concludes
that reasonable jurists could not find that a dismissal of each of Petitioner’s claims was debatable
or wrong. Therefore, this Court DENIES A CERTIFICATE OF APPEALABILITY as to
each issue raised by Petitioner.
For the same reasons the Court dismissed this action, the Court will certify that
any appeal by Petitioner from the Court’s decision and judgment would be frivolous and not
taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24. Therefore, any
application by Petitioner for leave to proceed in forma pauperis on appeal is hereby
DISMISSED.
In summary, Petitioner’s habeas application (ECF No. 1) pursuant to 28 U.S.C. §
2254 is DISMISSED WITH PREJUDICE. A judgment consistent with this Opinion and Order
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will be entered.
SO ORDERED.

_____/s/ R. Allan Edgar________________
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE
Dated: 3/22/2016

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