Petition for Writ of Certiorari — Roderic Rooks, Petitioner v. Shawn Brewer, Warden

Supreme Court briefJul 31, 2017

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NO.

In the Supreme Court of the United States

RODERIC ROOKS,

SHAWN BREWER,

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Phillip D. Comorski

Counsel of Record

431 Gratiot Avenue

Detroit, Michigan 48226

(313) 963-5101

comorskiphillip@gmail.com

Attorney for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

QUESTION PRESENTED

I. WHETHER THIS COURT SHOULD GRANT

CERTIORARI BECAUSE THE UNITED STATES

DISTRICT COURT JUDGE ERRED IN DENYING

A CERTIFICATE OF APPEALABILITY TO

PERMIT AN APPEAL FROM THE DISTRICT

COURT'S REJECTION, ON A MOTION UNDER

28 U.S.C. § 2254, OF HIS CONSTITUTIONAL

CHALLENGES FROM HIS STATE COURT

CONVICTION.

PARTIES TO THE PROCEEDINGS

Petitioner

Roderic Rooks, Petitioner, is an individual and has

no corporate affiliations.

Respondent

Kevin Lindsey, Respondent, is the acting Warden at

G. Robert Cotton Correctional Facility Jackson,

Michigan.

iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . vii

OPINIONS AND ORDERS BELOW . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 4

A. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Statement of Relevant Facts . . . . . . . . . . . . . . . . 5

REASON FOR GRANTING THE WRIT . . . . . . . . 11

I. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE THE UNITED STATES DISTRICT

COURT JUDGE ERRONEOUSLY DENIED A

CERTIFICATE OF APPEALABILITY IN THIS

HABEAS CORPUS CASE WHERE JURISTS

OF REASON COULD CLEARLY DEBATE

WHETHER THE DENIAL OF SEVERAL

CONSTITUTIONAL RIGHTS WAS SHOWN. . 11

A. PETITIONER WAS DENIED DUE

PROCESS WHEN THE CIRCUIT COURT

JUDGE REFUSED TO ALLOW

PETITIONER TO CONDUCT A FRANKS

HEARING, WHICH DENIED PETITIONER

THE OPPORTUNITY TO FULLY AND

FAIRLY LITIGATE HIS CLAIMS RAISED

IN HIS PRETRIAL MOTION TO

SUPPRESS. . . . . . . . . . . . . . . . . . . . . . . . . . 12

B. PETITIONER WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL BY

COUNSEL’S FAILURE TO FULLY

LITIGATE HIS CLAIMS RAISED IN HIS

PRETRIAL MOTION TO SUPPRESS, AND

WHEN COUNSEL FAILED TO TAKE

AVAILABLE STEPS TO ENSURE THAT

HIS ONLY DEFENSE WITNESS WOULD

BE CALLED AT TRIAL, AFTER THE

COURT HAD REFUSED TO GRANT AN

ADJOURNMENT. . . . . . . . . . . . . . . . . . . . . 17

C. PETITIONER WAS DENIED A FAIR TRIAL

WHEN THE TRIAL COURT DENIED

DEFENSE COUNSEL’S REQUEST FOR A

SHORT ADJOURNMENT WHEN

DEFENSE WITNESS EDWARD SIMS,

INFORMED DEFENSE COUNSEL THAT

HE WOULD INVOKE HIS FIFTH

AMENDMENT RIGHT AND NOT TESTIFY,

DUE TO THE FACT THAT THE

PROSECUTOR WAS IN THE PROCESS OF

APPEALING THE CHARGES THAT WERE

DISMISSED AGAINST SIMS, AND A

DECISION ON THE PROSECUTOR’S

APPEAL WAS EXPECTED WITHIN A FEW

DAYS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

D. PETITIONER IS ENTITLED TO A NEW

TRIAL ON THE BASIS OF NEWLY

AVAILABLE EVIDENCE, PURSUANT TO

THE TEST ANNOUNCED BY THE FIRST

CIRCUIT COURT OF APPEALS IN

UNITED STATES V. MONTILLA-RIVERA,

115 F.3D 1060, 1066 (1st Cir. 1997). . . . . . . 27

E. THE PROSECUTOR’S INTENTIONAL

ACTIONS PRECLUDED THE DEFENSE

FROM PRESENTING HIS ONLY DEFENSE

WITNESS AT TRIAL. . . . . . . . . . . . . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

APPENDIX

Appendix A Order in the United States Court of

Appeals for the Sixth Circuit

(May 2, 2018) . . . . . . . . . . . . . . . . App. 1

Appendix B Memorandum and Order Denying the

Petition for Writ of Habeas Corpus

and Declining to Issue a Certificate of

Appealability and Judgment in the

United States District Court, Eastern

District of Michigan, Southern

Division

(February 13, 2018) . . . . . . . . . . . App. 6

vii

TABLE OF CITED AUTHORITIES

CASES

Anderson v. Calderon,

232 F.3d 1053 (9th Cir. 2000) . . . . . . . . . . . . . . 14

Anderson v. Johnson,

338 F.3d 382 (5th Cir. 2003) . . . . . . . . . . . . . . . 17

Beasley v. United States,

491 F.2d 687 (6th Cir. 1974) . . . . . . . . . . . . . . . 21

Bennett v. Scroggy,

793 F.2d 772 (6th Cir. 1986) . . . . . . . . . . . . . . . 26

Berger v. United States,

295 U.S. 78 (1935) . . . . . . . . . . . . . . . . . . . . . . . 29

Blackburn v. Foltz,

828 F.2d 1177 (6th Cir. 1987) . . . . . . . . . . . 17, 18

Boyle v. Million,

201 F.3d 711 (6th Cir. 2000) . . . . . . . . . . . . . . . 29

Burt v. Titlow,

571 U.S. 12 (2013) . . . . . . . . . . . . . . . . . . . . . . . 12

Burton v. Renico,

391 F.3d 764 (6th Cir. 2004) . . . . . . . . . . . . . . . 26

Cave v. Singletary,

971 F.2d 1513 (11th Cir. 1992) . . . . . . . . . . 17, 22

Foley v. Parker,

488 F.3d 377 (6th Cir. 2007) . . . . . . . . . . . . . . . 25

Franks v. Delaware,

438 U.S. 154 (1978) . . . . . . . . . . . . . . . . . . passim

viii

Gamble v. Oklahoma,

583 F.2d 1161 (10th Cir. 1978) . . . . . . . . . . . . . 14

Gideon v. Wainwright,

372 U.S. 335 (1963) . . . . . . . . . . . . . . . . . . . . . . 17

Good v. Berghuis,

729 F.3d 636 (6th Cir. 2013) . . . . . . . . . . . . 14, 15

Griffen v. Warden,

970 F.2d 1355 (4th Cir. 1992) . . . . . . . . . . . . . . 23

Kimmelman v. Morrison,

477 U.S. 365 (1986) . . . . . . . . . . . . . . . . . . . 19, 21

Marby v. Johnson,

467 U.S. 504 (1984) . . . . . . . . . . . . . . . . . . . . . . 11

Marshall v. Hendricks,

307 F.3d 36 (3rd Cir. 2002) . . . . . . . . . . . . . . . . 14

Mason v. Mitchell,

320 F.3d 604 (6th Cir. 2003) . . . . . . . . . . . . . . . 30

McQueen v. Scroggy,

99 F.3d 1302 (6th Cir. 1996) . . . . . . . . . . . . . . . 18

Millender v. Adams,

376 F.3d 520 (6th Cir. 2004), cert. denied,

544 U.S. 921 (2005) . . . . . . . . . . . . . . . . . . . . . . 29

Miller-El v. Cockrell,

537 U.S. 322 (2003) . . . . . . . . . . . . . . . . . . . . . . 11

Moore v. United States,

432 F.2d 730 (3rd Cir. 1970) . . . . . . . . . . . . . . . 21

Powell v. Alabama,

287 U.S. 45 (1932) . . . . . . . . . . . . . . . . . . . . . . . 17

Scarpa v. Dubois,

38 F.3d 1 (1st Cir. 1994) . . . . . . . . . . . . . . . . . . 21

Serra v. Michigan Dep’t. of Corrections,

4 F.3d 1348 (6th Cir. 1993), cert denied,

510 U.S. 1201 (1994) . . . . . . . . . . . . . . . . . . . . . 29

Simpson v. Jones,

238 F.3d 399 (6th Cir. 2000) . . . . . . . . . . . . . . . 30

Sizemore v. Fletcher,

921 F.2d 667 (6th Cir. 1990) . . . . . . . . . . . . . . . 29

Slack v. McDaniel,

529 U.S. 473 (2000) . . . . . . . . . . . . . . . . . . . . . . 11

Stone v. Powell,

428 U.S. 465 (1976) . . . . . . . . . . . . . 13, 14, 15, 16

Strickland v. Washington,

466 U.S. 668 . . . . . . . . . . . . . . . . . . . . . . 17, 21, 23

Terry v. Ohio,

392 U.S. 1 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tukes v. Dugger,

911 F.2d 508 (11th Cir. 1990) . . . . . . . . . . . . . . 14

United States ex rel. Williams v. Twomey,

510 F.2d 634 (7th Cir. 1975) . . . . . . . . . . . . . . . 21

United States v. Crossley,

224 F.3d 847 (6th Cir. 2000) . . . . . . . . . . . . . . . 26

United States v. Jacobsen,

466 U.S. 109 (1984) . . . . . . . . . . . . . . . . . . . . . . 12

United States v. King,

664 F.2d 1171 (10th Cir. 1981) . . . . . . . . . . . . . 21

United States v. Montilla-Rivera,

115 F.3d 1060 (1st Cir. 1997) . . . . . . . . . . . 27, 28

United States v. Owen,

500 F.3d 83 (2nd Cir. 2007) . . . . . . . . . . . . . . . . 20

United States v. Vasquez,

560 F.3d 461 (6th Cir. 2009) . . . . . . . . . . . . . . . 24

Wilson v. Mintzes,

761 F.2d 275 (6th Cir. 1985) . . . . . . . . . . . . 24, 27

Wong Sun v. United States,

371 U.S. 471 (1963) . . . . . . . . . . . . . . . . . . . . . . 15

CONSTITUTION

U.S. Const. Amend. IV . . . . . . . . . . . . . . . . . . passim

U.S. Const. Amend. V . . . . . . . . . . . . . . . . . . . passim

U.S. Const. Amend. VI . . . . . . . . . . . . . . . . . 2, 17, 20

U.S. Const. Amend. XIV . . . . . . . . . . . . . . . . . . . 3, 11

STATUTES

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 2253(c)(2) . . . . . . . . . . . . . . . . . . . . . . . 11

28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12

28 U.S.C. § 2254(a) . . . . . . . . . . . . . . . . . . . . . . . . . 11

MCL 333.7401(2)(a)(i) . . . . . . . . . . . . . . . . . . . . . . . . 1

MCL 333.7401(2)(a)(iii) . . . . . . . . . . . . . . . . . . . . . . . 1

MCL 333.7401(2)(d)(ii) . . . . . . . . . . . . . . . . . . . . . . . 1

MCL 750.227b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Petitioner Roderic Rooks respectfully prays that a

Writ of Certiorari issue to the State of Michigan to

review the judgments of the Federal District Court for

the Eastern District of Michigan in Case

No. 2:17-cv-10666, the and the Sixth Circuit Court of

Appeals in Docket No. 18-1224. Petitioner Roderic

Rooks was convicted in the State of Michigan, Circuit

Court for the County of Oakland, of delivery or

manufacture of 1,000 or more grams of cocaine,

MCL 333.7401(2)(a)(i), two counts of delivery or

manufacture of 50 or more but less than 450 grams of

cocaine, MCL 333.7401(2)(a)(iii), delivery or

manufacture of 5 or more but less than 45 kilograms of

marijuana, MCL 333.7401(2)(d)(ii), and three counts of

possession of a firearm during the commission of a

felony, MCL 750.227b.

OPINIONS AND ORDERS BELOW

The Opinion of the Federal District Court for the

Eastern District of Michigan denying Petitioner’s

Petition for Writ of Habeas Corpus is included as

Appendix B. The Opinion of the Sixth Circuit Court of

Appeals denying Petitioner’s Petition for Certificate of

Appealability is included as Appendix A.

JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1257(a). The instant Petition is timely filed within 90

days of May 2, 2018, the date of the Sixth Circuit

Court’s Order denying Petitioner’s Motion for

certificate of appealability.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. Amend. IV

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and 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. V

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb, nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall

private property be taken for public use, without

just compensation.

U.S. Const. Amend. VI

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously

ascertained by law, and to be informed of the

nature and cause of the accusation; to be

confronted with the witnesses against him; to

have compulsory process for obtaining witnesses

in his favor, and to have the Assistance of

Counsel for his defence.

U.S. Const. Amend. XIV

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws

28 U.S.C. § 2254

(d)

An application for a writ of habeas corpus

on behalf of a person in custody pursuant

to the judgment of a State court shall not

be granted with respect to any claim that

was adjudicated on the merits in State

court proceedings unless the adjudication

of the claim --

(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.

STATEMENT OF THE CASE

A. Procedural History

Petitioner Roderic Martez Rooks was convicted in

state court and appealed by right. On April 18, 2013,

the Michigan Court of Appeals affirmed Petitioner’s

convictions. (Court of Appeals Docket No. 307810). On

September 3, 2013, the Michigan Supreme Court

denied leave to appeal. (Michigan Supreme Court

No. 147208). This Court denied Petitioner’s Petition

for Certiorari on February 24, 2014. (United States

Supreme Court No. 13-7669).

Petitioner filed a Motion for Relief from Judgment,

which was denied by the Circuit Court by Opinion and

Order dated December 23, 2015. Leave to appeal was

denied by the Court of Appeals on May 13, 2016

(Docket No. 331634), and by the Michigan Supreme

Court, and on January 31, 2017 (Order denying Leave

to Appeal, 1/31/17, Docket No. 154004).

Petitioner filed a Petition for Writ of Habeas Corpus

in the Federal District Court for the Eastern District of

Michigan, and on February 13, 2018, District Judge

Avern Cohn issued an Opinion and Order denying the

Petition and a certificate of appealability.

Petitioner filed a Notice of Appeal in the 6th Circuit

Court of Appeals, and on May 2, 2018, the 6th Circuit

entered an Order denying the application for certificate

of appealability.

B. Statement of Relevant Facts

On February of 2011, Southfield Police Detective

Paul Kinal wrote an affidavit in Support of Search

Warrant, where he claimed that he had received a tip

from an “unknown person” that Petitioner was

“involved in trafficking large amounts of crack cocaine”

and lived in Southfield, Michigan. Det. Kinal learned

through a law enforcement database that Petitioner

had two separate addresses in Southfield – an

apartment and a home. Det. Kinal learned that

Petitioner had leased the apartment. On February 9,

2011, Det. Kinal conducted a surveillance of the

apartment complex from the parking lot and observed

a “newer black GMC pickup pull into the lot and park

towards the rear.” (Affidavit #1, subsection F). Det.

Kinal ran the pickup’s plates and determined the GMC

was registered to Petitioner. (Affidavit #1,

subsection F(1)). He later observed a Trailblazer SUV,

later determined to be driven by Edward Darnell Sims,

enter the lot and park “near [Petitioner’s] vehicle.”

(Affidavit #1, subsection G). Det. Kinal further averred

“[t]hat Affiant observed suspicious activity, what he

believed to be, through training and experience, to be

a hand to hand narcotics transaction. [Petitioner] was

seen handing the black male driver a brown paper back

(sic) and a few seconds later the Trailblazer drove away

from the lot. (Affidavit #1, subsection G(2)).

Det. Kinal averred he followed the Trailblazer and

then “relayed the activities to K-9 Officer Medici of the

Southfield Police Department.” (Affidavit #1,

subsection G(3)). Det. Kinal reported that Officer

Medici stopped the Trailblazer for a traffic violation.

During the stop, Mr. Sims was found to be in

possession of a brown paper bag containing cocaine and

a loaded handgun. (Affidavit #1, subsection 3G(6)). Det.

Kinal then averred statements allegedly made by

Mr. Sims about Petitioner during Sims’ questioning at

the police department (Affidavit #1, subsection H(1)(4)).

Based on this affidavit, a district court magistrate

signed a search warrant for Petitioner’s apartment.

When other police officers arrived at Petitioner’s

apartment building to execute the warrant, they saw

Petitioner leave the building and enter his vehicle.

Petitioner was detained and a “large quantity of US

currency held together with rubber bands” was found

in his vehicle. The search of Petitioner’s apartment

found cocaine, along with weapons, scales, and other

drug trafficking items. On the basis of the search of

the apartment and Petitioner at the scene, Det. Kinal

requested a second warrant to search Petitioner’s home

in Southfield. Det. Kinal’s Affidavit in support of the

second warrant (Detective Kinal’s Affidavit in Support

of Search Warrant for Petitioner’s home (Affidavit #2,

dated 2/9/11) repeated the allegations in the first

affidavit and added:

(D)

That on 2/9/11, approximately 1900

hours, NET Detectives made 25701 W

Twelve Mile to execute a narcotics search

warrant on apartment #905 and arrest

Roderic Martez Rooks 1/8/71 for delivery

of cocaine.

(E)

That while NET Detectives were

conducting surveillance on the apartment,

Rooks exited the apartment building and

occupied his black GMC . . .

(1)

Rooks was arrested by members of the

Southfield Tactical Crime Suppression

Unit (TCSU) and found in possession

of a large quantity of US currency held

together with rubber bands.

(2)

That Rooks, when taken into custody,

advised members of TCSU that he

resided at 22157 Twyckingham Way

in the City of Southfield, county of

Oakland, State of Michigan

(G)

That Affiant along with NET Detectives

executed a narcotics search warrant on

apartment 905 at 25701 W Twelve Mile

Rd and recovered more than 2 kilograms

of cocaine.

(Affidavit #2, subsections D-G).

The same magistrate judge who signed the first

search warrant also signed the warrant for the

Twyckingham Way residence.

More cocaine,

marijuana, weapons, and drug trafficking materials

were seized from Petitioner’s residence. Separate

criminal charges were brought against Petitioner and

against Edward Darnell Sims, the driver of the

Trailblazer. Both cases were assigned to the same

district court judge for preliminary exam. Petitioner

waived his preliminary examination on February 23,

2011 and his case was bound over to the circuit court

for trial. Sims, also represented by counsel, did not

waive his preliminary examination. The following

timeline lists the subsequent key events in

chronological order, with key dates relating to

Petitioner in italics.

Petitioner’s trial occurred on October 18, 2011.

Before trial, Petitioner’s attorney requested an

adjournment until the prosecution’s appeal of Sims’

suppression and dismissal was resolved:

I spoke to his lawyer. His lawyer indicated –

that’s Mr. Sims. He was a co-defendant. . . Not

only would he have testified [at the Franks

hearing, had it been held], your Honor, to the

fact that he didn’t make any statements

regarding my client but also that there was no

exchange. But as indicated, your Honor, he’s

unavailable to us and as a result of same, your

Honor, I think that this case should be

adjourned until he resolves his appeal in

Oakland County Circuit Court.”

(Transcript, 10/18/11, pp 5-6).

The prosecutor objected to any adjournment,

stating:

Judge, first of all I don’t think it’s proper for

counsel to indicated what Mr. Sims would say.

But in any event he’s unavailable. His lawyer

indicated he’s going to take the Fifth. His case is

up tomorrow. I have ever expectation that it will

be reinstated and will take some time to resolve.

At least that’s obviously the People’s hope and

position. So we’re ready to proceed to trial today.

We’ve been ready.

(Transcript, 10/18/11, p 6).

The circuit court denied Petitioner’s request for a

trial adjournment, stating: “I think the case needs to

move forward.” (Transcript, 10/18/11, p 6). The

prosecutor presented five witnesses, all law

enforcement officers, including Det. Kinal. Det. Kinal

did not address whether the witness who provided the

initial tip regarding petitioner was “unknown” (his

Search Warrant Affidavits), “unnamed” (his Southfield

P.D. Narrative Report), or “confidential” (the

prosecutor’s opening statement), not was he asked by

Petitioner’s attorney regarding the source of this initial

tip.

Petitioner did not testify or present any witnesses.

The circuit court, after detailing the evidence in her

findings of fact, found Petitioner guilty as charged on

all counts. (Transcript, 10/18/11, p 129). As the

prosecutor had noted at the start of Petitioner’s trial,

oral arguments on the prosecution’s appeal of the Sims’

suppression and dismissal were held before a different

circuit court judge the day after Petitioner’s one day

trial concluded. Petitioner’s trial prosecutor argued the

appeal in the Sims’ case. Two days later, the circuit

court which heard the appeal of the Sims’ dismissal

issued an 11-page Opinion and Order denying the

prosecution’s appeal, stating: “Officer Medici suspected

that [Sims] was involved in drug activity based on only

the fact that Detective Kinal had requested the stop. An

officer must be able to articulate more than an

“inchoate and unparticularized suspicion or ‘hunch’ of

criminal activity.” Terry [v. Ohio, 392 U.S. 1, 27

(1968)]. Officer Medici possessed only a hunch that

[Sims] was involved in drug activity because the

individual requesting the stop happened to be a

narcotics officer.” (Emphasis added).

The prosecutor did not appeal this Opinion and

Order, and Petitioner filed a timely appeal from his

convictions. While Petitioner’s appeal was pending, Mr.

Sims signed an affidavit in which he denied ever telling

the police at any time after his arrest the information

which was contained in Det. Kinal’s Affidavit #1,

¶¶ H(1)-(4).

On April 18, 2013, the Michigan Court of Appeals

affirmed Petitioner’s convictions, and on September 3,

2013, the Michigan Supreme Court denied Petitioner

leave to appeal in a standard order. This Court denied

Petitioner’s Petition for Certiorari on February 24,

2014.

Petitioner filed a Motion for Relief from Judgment,

which was denied on December 18, 2015. Leave to

appeal was denied by the Court of Appeals on May 13,

2016, and by the Michigan Supreme Court, and on

January 31, 2017.

Petitioner filed a Petition for Writ of Habeas Corpus

in the Federal District Court for the Eastern District of

Michigan, and on February 13, 2018, District Judge

Avern Cohn issued an Opinion and Order denying the

Petition and a certificate of appealability.

On May 2, 2018, the 6th Circuit Court of Appeals

entered an Order denying

the application for

certificate of appealability “[b]ecause reasonable jurists

would not debate the district court’s reasons for

denying Rooks’s petition . . . .”

Petitioner asserts that he is entitled to proceed with

his claim that his habeas corpus petition was

erroneously denied.

REASON FOR GRANTING THE WRIT

I. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE THE UNITED STATES DISTRICT

COURT JUDGE ERRONEOUSLY DENIED A

CERTIFICATE OF APPEALABILITY IN THIS

HABEAS CORPUS CASE WHERE JURISTS OF

REASON COULD CLEARLY DEBATE

WHETHER THE DENIAL OF SEVERAL

CONSTITUTIONAL RIGHTS WAS SHOWN.

Petitioner is entitled to federal habeas corpus relief

as his conviction and custody are in violation of the

federal constitution. U.S. Const Amends. V, XIV; 28

U.S.C. § 2254(a); Marby v. Johnson, 467 U.S. 504

(1984). The issues that Petitioner raised in his petition

for a writ of habeas corpus made a substantial showing

of the denial of constitutional rights, as required by 28

U.S.C. § 2253(c)(2).

When a court rejects a habeas claim on the merits,

the substantial showing threshold is met if the

Petitioner demonstrates that reasonable jurists would

find the district court’s assessment of the constitutional

claim debatable or wrong. See, Slack v. McDaniel, 529

U.S. 473, 484-485 (2000). “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 that

standard, a district 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.

Miller-El v. Cockrell, 537 U.S. at 336-337. “The district

court must issue or deny a certificate of appealability

when it enters a final order adverse to the applicant.”

Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C.

§ 2254.

In this case, reasonable jurists could debate the

district court’s resolution of Petitioner’s habeas claims.

The issues show that the claims were substantial

violations or unreasonable application of Supreme

Court precedent, and/or an unreasonable

determination of the facts. Adjudication of the issues

was “so lacking in justification that there was an error

. . . beyond any possibility for fairminded

disagreement.” Burt v. Titlow, 571 U.S. 12, 19 (2013).

A. PETITIONER

WAS

DENIED

DUE

PROCESS WHEN THE CIRCUIT COURT

JUDGE REFUSED TO ALLOW

PETITIONER TO CONDUCT A FRANKS

HEARING, WHICH DENIED PETITIONER

THE OPPORTUNITY TO FULLY AND

FAIRLY LITIGATE HIS CLAIMS RAISED

IN HIS PRETRIAL MOTION TO

SUPPRESS.

The Fourth Amendment protects against

unreasonable searches and seizures. United States v.

Jacobsen, 466 U.S. 109, 113 (1984). Absent certain

exceptions not relevant here, the police must obtain a

warrant, based “upon probable cause, supported by

Oath or affirmation,”from a neutral and disinterested

magistrate before conducting a search. Franks v.

Delaware, 438 U.S. 154, 164 (1978). The affidavit

presented to the magistrate must be “truthful,” i.e., the

information provided must be believed or appropriately

accepted by the affiant as true. Franks v. Delaware,

438 U.S. at 165. Where a Defendant makes a

“substantial preliminary showing” that a false

statement was knowingly and intentionally included by

the affiant in an affidavit for a search warrant, and the

false statement is necessary for the finding of probable

cause, the Fourth Amendment requires a hearing if a

defendant requests one. Franks v. Delaware, 438 U.S.

at 155-156.

In this case, the trial court denied Petitioner an

evidentiary hearing on his Franks claim but invited

Petitioner to re-raise the Franks issue by submitting

affidavits from Sims and Petitioner supporting

Petitioner’s claim. Petitioner’s attorney and the

prosecutor told Petitioner’s trial court at least twice

that Sims was “unavailable” to sign an affidavit or to

testify because of the advice of his Sims’ attorney and

the pendency of Sims’ own case. (TR, 8/1/11, Motion

Hearing, pp 8-9; TR, 10/18/11, pp 5-6). The order of

suppression and dismissal of Sims’ case was entered

on June 3, 2011. The prosecutor appealed this order to

the circuit court. The prosecutor’s appeal was pending

at the time of Petitioner’s bench trial. Two days after

Petitioner’s convictions at his bench trial, the circuit

court denied the prosecutor’s appeal and affirmed the

suppression of the cocaine as to Sims. The prosecutor

did not pursue a further appeal of the Sims’

suppression order.

Petitioner challenged his convictions on the ground

that the trial court had denied Petitioner an

evidentiary hearing on his Franks motion, when

Petitioner’s attorney and the prosecutor told the trial

court at least twice that the necessary witness was

temporarily unavailable to testify, due to the pendency

of the witness’ own case. The district court ruled that

Stone v. Powell, 428 U.S. 465 (1976) requires the claim

to be denied because “it is undisputed that Petitioner

was able to present his Fourth Amendment claims to

the trial court in his motion to suppress. Petitioner

was later able to present his Fourth Amendment

claims to the Michigan appellate courts. The Michigan

Court of Appeals fully considered the claim before

finding it without merit.” (Opinion and Order Denying

Habeas Petition, RE 10, PAGE ID # 934).

A majority of federal circuits state that the state

court need do no more than recognize a Fourth

Amendment claim and decide it, even without a

hearing. See, Good v. Berghuis, 729 F.3d 636 (6th Cir.

2013). The majority of federal courts hold it sufficient

that a state offers a procedure for presenting a Fourth

Amendment claim. Marshall v. Hendricks, 307 F.3d 36

82 (3rd Cir. 2002). But the Ninth, Tenth, and Eleventh

Circuits have also looked at the adequacy of the state’s

procedures for addressing Fourth Amendment claims.

Anderson v. Calderon, 232 F.3d 1053, 1068 (9th Cir.

2000) (“[W]e are persuaded on these facts and

circumstances that this kind of review fall short of the

quality of litigation opportunity described in Stone.”);

Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir.

1978)(“‘Opportunity for full and fair consideration’

includes, but is not limited to, the procedural

opportunity to raise or otherwise present a Fourth

Amendment claim. It also includes [a] full and fair

evidentiary hearing . . .”)(footnote omitted); Tukes v.

Dugger, 911 F.2d 508, 514 (11th Cir. 1990)(“The court’s

failure to make explicit findings on matters essential to

the Fourth Amendment issue, combined with the fact

that the state appellate court issued only a summary

affirmance, precludes a conclusion . . . that . . . [there

is] a Stone v. Powell bar to our review of the claim.”)

The Sixth Circuit, the federal circuit which would

address any federal habeas appeal of the Fourth

Amendment issues by Petitioner, now holds that

“absent a sham proceeding, there is no need to ask

whether the state court conducted an evidentiary

hearing or inquire otherwise into the rigor of the state

judiciary’s procedures for resolving the [Fourth

Amendment] claim.” Good v. Berghuis, 729 F.3d at 639.

Thus, Petitioner was denied review in the state courts

and those decisions of the state courts will not be

addressed by federal courts.

The district court ignored the fact that the Michigan

Court of Appeals did exactly what the lower court did

in evaluating the claim -- rejected the issue without

permitting Mr. Rooks to hold a proper evidentiary

hearing. Where a state court has determined a Fourth

Amendment claim on the merits without a hearing, the

question is whether the state’s adjudication of the

claim precludes this Court from considering the merits

of a Fourth Amendment claim pursuant to Stone v.

Powell, 428 U.S. at 494. Therefore, the state court

review cannot be deemed a “full and fair” adjudication

of the Fourth Amendment claim, since the state court

refused to grant a “full and fair evidentiary hearing”

concerning Petitioner’s allegations that Detective Paul

Kinal had knowingly and intentionally provided false

information in the search warrant affidavit. The false

information in Affidavit #1 would also give rise to a

claim that Det. Kinal was not acting in good faith, and

therefore the fruits obtained from the defective warrant

would have to be suppressed. Wong Sun v. United

States, 371 U.S. 471 (1963). Petitioner’s attorney’s

affidavit satisfies the standard under Franks that

claims of falsehood in an affidavit be supported by a

sufficient offer of proof. Petitioner made such an offer

in the circuit court. Appellate counsel supplemented

the request with Sims’ own affidavit in the Motion to

Remand to the Michigan Court of Appeals without

obtaining a remand.

The trial judge’s failure to conduct an evidentiary

hearing precluded Petitioner from conducting a full and

fair opportunity to litigate his Fourth Amendment

claim. Much of the allegations were based on sworn

affidavits, which were not part of the lower court

record, and without a proper evidentiary hearing, the

affidavits could not be considered on appeal. Hence,

although Michigan Court of Appeals determined that

no Franks hearing was necessary -- the opportunity to

litigate, for purposes of Stone v. Powell, encompasses

more than a mere presentation of a Fourth Amendment

claim to the state appellate courts as part of direct

review of a conviction. Because all of the material facts

were not before the state appellate courts on direct

review (much of the evidence was in non-record

affidavit form), Petitioner did not have a full and fair

opportunity to litigate his Fourth Amendment claims,

and is entitled to relief notwithstanding Stone v.

Powell.

B. PETITIONER WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL BY

COUNSEL’S FAILURE TO FULLY

LITIGATE HIS CLAIMS RAISED IN HIS

PRETRIAL MOTION TO SUPPRESS, AND

WHEN COUNSEL FAILED TO TAKE

AVAILABLE STEPS TO ENSURE THAT

HIS ONLY DEFENSE WITNESS WOULD BE

CALLED AT TRIAL, AFTER THE COURT

HAD REFUSED TO GRANT AN

ADJOURNMENT.

The Sixth Amendment provides that the accused in

a criminal prosecution “shall enjoy the right . . . to have

the Assistance of Counsel for his defense.” U.S. Const.,

Am. VI. This requirement is applicable to the states,

Gideon v. Wainwright, 372 U.S. 335, 342 (1963), and

encompasses the right to “effective” assistance of

counsel. Powell v. Alabama, 287 U.S. 45 (1932). That

right is undermined where counsel’s performance falls

below an objective standard of reasonableness, and if

“there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different.” Strickland v. Washington,

466 U.S. 668, 690; 694 (1984). A defendant must

overcome the presumption that counsel’s actions were

based on reasonable trial strategy, and merely labeling

counsel’s errors “strategy” does not shield his

performance from scrutiny. Cave v. Singletary, 971

F.2d 1513 (11th Cir. 1992). Counsel’s behavior cannot

be considered objectively reasonable if his strategy is

predicated on ignorance of the law, inadequate

preparation, or a misreading of the plain language of

controlling legal authority. Anderson v. Johnson, 338

F.3d 382 (5th Cir. 2003); Blackburn v. Foltz, 828 F.2d

1177, 1187 (6th Cir. 1987). While courts must not view

a trial in hindsight, they must evaluate the

reasonableness of counsel’s performance at the time of

the alleged errors. See, McQueen v. Scroggy, 99 F.3d

1302, 1311 (6th Cir. 1996).

In Petitioner’s case, his attorney filed a motion

claiming certain averments in Affidavits #1 and #2

were false and a hearing pursuant to Franks v.

Delaware was necessary. As to the Franks hearing, the

trial court stated:

Now if what you’re saying is that that’s all

nonsense as well and the police are making it

up, which I am totally open to, you are going to

have to have an affidavit not only from your

client stating that but also Mr. Sims or

somebody who can back that up . . . So if you’ve

got some other evidence that – and again if Sims

will in fact testify to that . . . you need to bring

that on.

(Transcript, 8/1/11, Motion Hearing, p 8).

Petitioner’s attorney did nothing in response to the

trial court’s invitation nor did he seek interlocutory

review in the Michigan Court of Appeals. Petitioner’s

trial was eventually rescheduled to October 18, 2011.

By that date, the district court had granted Sims’

motion to suppress the cocaine recovered from him

during the traffic stop of his vehicle and dismissed the

charges against Sims. The morning of Petitioner’s

bench trial, Petitioner’s attorney told the trial court

that Mr. Sims was “unavailable” because of the

prosecution’s appeal of the orders suppressing of the

evidence as to Sims, but Sims would have testified at

Petitioner’s Franks hearing if one had been held and

denied making the statements attributed to him and

denied any exchange of cocaine with Petitioner

(Transcript, 10/18/11, p 6). Petitioner’s attorney then

asked for an adjournment of trial, but the trial court

said: “I think the case needs to move forward.”

Petitioner’s attorney said nothing else about

Petitioner’s need to obtain the testimony of Sims, a

critical witness for Petitioner’s defense.

Petitioner claims his attorney was constitutionally

ineffective, as he clearly articulated the necessity and

sufficiency of the proof for an evidentiary hearing in

the trial court, but then inexplicably failed to pursue

the issue in the Court of Appeals when relief was

denied and reconsideration was denied. This Court’s

decision in Kimmelman v. Morrison, 477 U.S. 365

(1986) addressed the standard for granting relief in a

situation where counsel rendered deficient performance

regarding the defendant’s Fourth Amendment claims:

Where 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. at 375.

Petitioner maintains that his Fourth Amendment

issues were meritorious and his attorney’s failure to

seek an interlocutory appeal to the Michigan Court of

Appeals – which would at least likely created a delay in

Petitioner’s trial and allowed Petitioner’s attorney to

obtain Sims as a witness for Petitioner’s trial – caused

him prejudice. Petitioner also maintains that he was

denied effective assistance of counsel when trial

counsel failed to take all available reasonable steps to

ensure that his only defense witness (codefendant

Sims) could testify at his trial, after that witness

indicated that he would invoke his privilege against

self-incrimination and refuses to testify. When a

codefendant invokes the privilege against selfincrimination and refuses to testify, a defendant is

denied the benefit of potentially exculpatory testimony,

United States v. Owen, 500 F.3d 83, 91 (2nd Cir. 2007),

and even cannot rely on the fact that the codefendant

has refused to testify in this regard. United States v.

Owen, 500 F.3d at 92, n.6. In light of such a

consequence of the Fifth Amendment privilege, it is

imperative that defense counsel utilize proper

procedural remedies in order to advance a defense.

In this case, defense counsel requested an

adjournment; and when this Court stated that the case

had to move forward, defense counsel did not seek any

additional remedies. Since Petitioner’s case was

separate from Mr. Sims, as noted in Owen, defense

counsel could have made a request that the prosecutor

confer limited immunity on Sims so that Sims could

testify truthfully, and allow Petitioner the opportunity

to secure his testimony at trial. United States v. Owen,

500 F.3d at 92.

The Sixth Amendment guarantee of effective

assistance of counsel includes having a defense

attorney investigate, prepare, present all defense

witnesses, and assert all substantial defenses. Beasley

v. United States, 491 F.2d 687, 696 (6th Cir. 1974). See

also, Moore v. United States, 432 F.2d 730, 735, 739

(3rd Cir. 1970); Kimmelman v. Morrison, supra

[counsel’s total failure to conduct investigation before

trial was ineffective representation under Strickland,

supra]. Petitioner cannot be held culpable for the fact

that his trial attorney was not prepared for trial.

Prejudice is adequately shown where Defendant

demonstrates that he might have lost a possible

defense, or that there is reason to believe that he may

have been prejudiced.

An attorney’s otherwise

“zealous” attack on the prosecution’s case does not

assure that the defendant’s rights have been fully or

adequately protected, particularly where it is clear that

the attorney has not done the necessary investigation

and preparation. United States v. King, 664 F.2d 1171

(10th Cir. 1981).

The strength of the prosecution’s case cannot excuse

the admittedly deficient performance of counsel. Even

the most guilty defendant is guaranteed an attorney

who has the opportunity to prepare his case. In

judging counsel’s conduct “much depends on the nature

of the charge, of the evidence known to be available to

the prosecution, of the evidence susceptible of being

produced at once or later by the defense, and of the

experience and capacity of defense counsel.” United

States ex rel. Williams v. Twomey, 510 F.2d 634, 639

(7th Cir. 1975). “[I]f an attorney does not grasp the

basics of the charges and the potential defenses to

them, an accused may well be stripped of the very

means that are essential to subject the prosecution’s

case to adversarial testing.” Scarpa v. Dubois, 38 F.3d

1, 10 (1st Cir. 1994). Trial counsel in this case simply

failed to meet such minimum standards of

performance, with the result that there was a

wholesale failure of the adversary process. This failure

of advocacy cannot be excused as a matter of “strategy.”

As the Court explained in Cave v. Singletary, 971 at

1518, a case in which trial counsel’s overinflated view

of her own abilities led her to pursue a strategy that

was clearly doomed from the beginning, and to forego

efforts to prepare for the (inevitable) failure of that

strategy.

In this case, in addressing this issue, the district

court merely held that “Petitioner has not shown that

[the potential witness] would have provided

exculpatory trial testimony.

Trial counsel was

therefore not ineffective in failing to take steps to

assure his presence at trial. Habeas relief is not

warranted on this ground.” (Opinion and Order

Denying Habeas Petition, RE 10, PAGE ID # 937).

However, the entire defense in the case was to attack

the credibility of the officers’ testimony -- both at the

hearing and at trial. Since the potential witness’

proposed testimony was the only way to effectively

accomplish this task -- the witness was crucial and

defense counsel should have done everything in his

power to ensure that this witness testified, including

asking for limited immunity. However, the district

court merely adopted the state trial court’s conclusion

that “Petitioner failed to show that [the potential

witness] would have provided testimony that would

have exonerated Petitioner.” (Opinion and Order

Denying Habeas Petition, RE 10, PAGE ID # 937). The

district court failed to mention that the potential

witness’ own sworn affidavit specifically details the

matters he would have testified to, including that the

police department lied when they indicated that this

witness allegedly implicated Petitioner-Appellant.

(Affidavit of Edward Darnell Sims, 10/27/14, PAGE ID

# 304). For this reason, the district court’s conclusion

on this issue is contrary to or an unreasonable

application of federal law.

The district court similarly addressed Petitioner’s

claim of the denial of a continuance and held that

“Petitioner has failed to show that the trial court’s

denial of a continuance deprived him of a

fundamentally fair trial. He has not stated with any

specificity the content of [the potential witness’]

anticipated testimony nor has he established that his

trial testimony (as opposed to any testimony at a

Franks hearing) would have been favorable to the

defense.” (Opinion and Order Denying Habeas Petition,

RE 10, PAGE ID # 938). In the case at bar, Petitioner

demonstrated that the witness (co-defendant Edward

Darnell Sims) would have testified that the statements

the police attributed to him which implicated Petitioner

were false, which would have impeached the officers’

testimony that Petitioner was involved in the incident.

As to the prejudice prong of Strickland, there is

clearly a reasonable probability that counsel’s inability

to produce the witness at issue affected the outcome of

the proceeding. Griffen v. Warden, 970 F.2d 1355, 13581359 (4th Cir. 1992).

C. PETITIONER WAS DENIED A FAIR TRIAL

WHEN THE TRIAL COURT DENIED

DEFENSE COUNSEL’S REQUEST FOR A

SHORT ADJOURNMENT WHEN DEFENSE

WITNESS EDWARD SIMS, INFORMED

DEFENSE COUNSEL THAT HE WOULD

INVOKE HIS FIFTH AMENDMENT RIGHT

AND NOT TESTIFY, DUE TO THE FACT

THAT THE PROSECUTOR WAS IN THE

PROCESS OF APPEALING THE CHARGES

THAT WERE DISMISSED AGAINST SIMS,

AND

DECISION

THE

PROSECUTOR’S APPEAL WAS EXPECTED

WITHIN A FEW DAYS.

A trial court abuses its discretion in denying a

continuance when it engages in “an unreasoning and

arbitrary insistence upon expeditiousness in the face of

a justifiable request for delay.” United States v.

Vasquez, 560 F.3d 461, 466 (6th Cir. 2009). “Whether

a continuance is appropriate in a particular case

depends on the facts and circumstances of that case . . .

with the trial judge considering the length of delay,

previous continuances, . . . whether the delay is

purposeful or is caused by the accused, . . . the

complexity of the case, and whether denying the

continuance will lead to identifiable prejudice.” Wilson

v. Mintzes, 761 F.2d 275, 281 (6th Cir. 1985).

Petitioner was denied a fair trial when the Circuit

Court refused to grant a short adjournment on the date

scheduled for trial. He asserts that the adjournment

request was associated with his constitutional right to

present a defense, and the failure to secure this witness

was not due to defense counsel’s negligence.

On the day of trial, when the Court asked if the

parties were ready to proceed, trial counsel sought an

adjournment of the trial due to the fact that defense

witness (co-defendant Edward Darnell Sims) would be

unable to testify at that time on his behalf. Defense

counsel indicated that his only defense witness, codefendant Sims, was unavailable because his own case

was pending on an appeal from a suppression decision,

and that Sims’s lawyer advised him to exercise his

Fifth Amendment privilege at that time.

Although defense counsel made a request for a brief

adjournment to allow time for Sims’s case to be

resolved, the prosecutor opposed the adjournment and

basically stated that they “expected” that Sims’s case

would be reinstated by Judge Colleen O’Brien the

following day (Transcript, 10/18/11, pp 5-6). A request

for adjournment to secure a defense witness was raised

before the Court (Transcript, 10/18/11, pp 5-6). When

the Court asked for a response from the prosecutor, the

trial prosecutor, Ms. Beth Hand, apparently had no

legitimate reason for objecting to the adjournment

request, other than she expected that charges would be

reinstated against Mr. Sims, and that she was “ready

to proceed to trial today.” (Transcript, 10/18/11, p 6).

The Court relied on this representation from the

prosecutor as the basis for in denying the adjournment

request (Transcript, 10/18/11, p 6).

Petitioner’s right to present a defense was

compromised under these circumstances. The “[d]enial

of a continuance rises to the level of a constitutional

violation only if it is so arbitrary as to violate due

process.” Foley v. Parker, 488 F.3d 377, 389 (6th Cir.

2007). The petitioner must also demonstrate that the

denial of a continuance actually prejudiced the defense.

Burton v. Renico, 391 F.3d 764, 772 (6th Cir. 2004).

“‘Actual prejudice’ is established ‘by showing that a

continuance would have . . . added something to the

defense.’” United States v. Crossley, 224 F.3d 847, 855

(6th Cir. 2000).

When a habeas petitioner challenges the grant or

denial of an adjournment request, the trial court’s

decision “must have been so arbitrary and

fundamentally unfair that it violates constitutional

principles of due process.” Bennett v. Scroggy, 793 F.2d

772, 774-775 (6th Cir. 1986). In this case, the Circuit

Court did not consider the nature of the constitutional

right he was asserting, or the fact that he had a

legitimate reason for asserting the right. Forcing

Petitioner to go to trial under these circumstances

resulted in a deprivation of his constitutional right to

present a defense, since no other witnesses were called

at trial. Proposed defense witness Sims would have

offered testimony favorable to the defense, but was

precluded from doing so because the prosecutor was

appealing the dismissal of charges against him, which

prompted Mr. Sims to exercise his Fifth Amendment

right against self-incrimination, based on his own

attorney’s advise. Since the question of whether Mr.

Sims’ case was going to be reinstated was the sole

reason Sims refused to testify at the time of Petitioner

-- a brief adjournment would have permitted this

question to be resolved, since the dismissal of charges

against Mr. Sims was upheld on October 21, 2011,

which was a mere three days after the trial was held in

this case.

Petitioner has demonstrated that the court acted

unreasonably or arbitrarily in denying his motion to

adjourn. Instead, the record shows that the court failed

to consider the appropriate factors when it denied the

motion for a continuance, including “the length of

delay, previous continuances, . . . whether the delay is

purposeful or is caused by the accused, . . . the

complexity of the case, and whether denying the

continuance will lead to identifiable prejudice.” Wilson

v. Mintzes, 761 F.2d at 281.

Defense counsel

established good cause for the adjournment. He

identified the one witness (Sims) who would have

testified in his favor if an adjournment had been

granted.

Accordingly, because the right to call witnesses is

constitutional, Petitioner was denied his federal right

to due process when the Court denied a brief request

for an adjournment.

D. PETITIONER IS ENTITLED TO A NEW

TRIAL ON THE BASIS OF NEWLY

AVAILABLE EVIDENCE, PURSUANT TO

THE TEST ANNOUNCED BY THE FIRST

CIRCUIT COURT OF APPEALS IN UNITED

STATES V. MONTILLA-RIVERA, 115 F.3D

1060, 1066 (1st Cir. 1997).

Petitioner argued that, in light of codefendant Sims

coming forward with his desire to testify after he no

longer faced possible charges (and after Petitioner was

convicted), this development amounted to newly

discovered evidence, entitling him to a new trial so that

a fact finder may consider this testimony along with

the other evidence presented. Although Petitioner

acknowledges that codefendants who asserted his Fifth

Amendment privilege at trial is not technically “newly

discovered evidence”, the more appropriate test for

evaluating this claim should be the one announced by

the First Circuit in United States v. Montilla-Rivera,

115 F.3d 1060 (1st Cir. 1997), where the majority held

that “. . . the better rule is not to categorically exclude

the testimony of a codefendant who asserted his Fifth

Amendment privilege at trial under the first prong but

to consider it, albeit with great skepticism”, recognizing

that, “[i]t is true that there is greater need for caution

in considering [such] motions where the new evidence

comes from a codefendant who was ‘unavailable’ at

trial because he chose to exercise his privilege.” United

States v. Montilla-Rivera, 115 F.3d at 1066. This

approach does not foreclose the possibility that justice

may require the granting of a new trial in a particular

case involving “newly available” evidence (as in this

case).

Petitioner is entitled to a new trial under the First

Circuit test. First, there was no other evidence

admitted that supported his defense. Second, counsel

did try to call the codefendant as a witness but was

informed that he intended to exercise his Fifth

Amendment Privilege, thus demonstrating that there

was a good faith belief that he could offer exculpatory

testimony. Third, there was an offer of proof as to what

counsel believed the codefendant could testify to if he

did not assert his 5th Amendment privilege. These

factors suggest that the issue in this case related to the

existence of known exculpatory testimony that was

genuinely unavailable prior to conviction.

E. THE PROSECUTOR’S INTENTIONAL

ACTIONS PRECLUDED THE DEFENSE

FROM PRESENTING HIS ONLY DEFENSE

WITNESS AT TRIAL.

The duty to refrain from improper methods extends

from the United States Attorney to state and local

prosecutors. See, Sizemore v. Fletcher, 921 F.2d 667

(6th Cir. 1990)(granting habeas relief where prosecutor

commented on defendant having seven attorneys and

the defendant’s wealth). In Berger v. United States,

295 U.S. 78, 88 (1935), this Court recognized that the

prosecutor has a duty not only to the government, but

to a defendant as well, to ensure a fair trial by

refraining from such improper methods in obtaining

convictions. Berger v. United States, supra at 88.

While “[c]laims of prosecutorial misconduct are

reviewed deferentially on habeas review”, Millender v.

Adams, 376 F.3d 520, 528 (6th Cir. 2004), cert. denied,

544 U.S. 921 (2005), intentional prosecutorial

misconduct can result in the reversal of the criminal

conviction. Boyle v. Million, 201 F.3d 711, 717-718 (6th

Cir. 2000). “When a petitioner makes a claim of

prosecutorial misconduct, ‘the touchstone of due

process analysis . . . is the fairness of the trial, not the

culpability of the prosecutor.” Serra v. Michigan Dep’t.

of Corrections, 4 F.3d 1348, 1355-1356 (6th Cir. 1993),

cert denied, 510 U.S. 1201 (1994).

On habeas review, the role of the federal court is to

determine whether the conduct was “so egregious as to

render the entire trial fundamentally unfair.” Serra,

supra, 4 F.3d at 1355. “[T]he misconduct must be so

pronounced and persistent that it permeates the entire

atmosphere of the trial or so gross as probably to

prejudice the defendant.” Mason v. Mitchell, 320 F.3d

604, 635 (6th Cir. 2003), quoting Simpson v. Jones, 238

F.3d 399, 409 (6th Cir. 2000). In this case, the

prosecutor took every step to ensure that defense

counsel’s only witness would not testify. In response to

counsel’s adjournment request to allow the

prosecutorial appeal of the dismissed charges as to

codefendant Sims to be completed, the prosecutor put

forth the following argument on the subject:

MS. HAND: Judge, first of all I don’t think

it’s proper for counsel to indicate what Mr. Sims

would say. But in any event he is unavailable.

His lawyer indicated that he’s going to take the

Fifth. His case is up tomorrow. I have every

expectation that it will be reinstated and will

take some time to resolve. At least that’s

obviously the People’s position. So we’re ready

to proceed to trial today. We’ve been ready.

(Transcript, 10/18/11, p 6).

While it is the prosecutor’s to make a defendant

look uneasy and incredible before a fact finder, there

are permissible methods, and there are tactics that are

improper and deny the accused the right to a fair trial.

The affidavit of Edward Sims shows that Mr. Sims had

planned to testify that the police officers had totally

fabricated the case against Petitioner. Apparently, the

attorney for the co-defendant informed trial counsel

that he would take the 5th Amendment if called,

because the prosecutor intended to reinstate the case

after appeal. The prosecutor acknowledged this

representation, but offered no reasonable alternative

(i.e. limited immunity; short adjournment) which would

not result in the total elimination of the only defense

witness in this case. Such prosecutorial intimidation

of a proposed defense witness has consistently been

routinely regarded as improper, particularly when the

result of such intimidation is that a defendant’s

complete defense is prevented from being presented to

the fact finder.

The actions by the prosecutor resulted in Petitioner

being denied his right to present a defense, which in

this case could have been a solid, since it was

supported by an important witness. The preclusion of

the only defense witness placed Petitioner in a no-win

situation, and the prosecutor knew it.

On this basis, the writ must be granted.

CONCLUSION

For all of the reasons stated herein, the petition for

a writ of certiorari should be granted.

Respectfully Submitted,