Petition for Writ of Certiorari — Mark Elliott, Petitioner v. Carmen Denise Palmer, Warden

Case: 16-498 Document: 7-2 Filed: 06/14/2017 Page: 1

No. 16-2498

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Jun 14, 2017

DEBORAH S. HUNT, Clerk

MARK ELLIOTT,

Petitioner-Appellant,

ORDER

kv

CARMEN DENISE PALMER, Warden,

Respondent-Appellee.

Mark Elliott, a Michigan prisoner proceeding pro Se, appeals the district court's judgment

denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Elliott has applied

for a certificate of appealability ("COA"). See Fed. R. App. P. 22(b)(1). He has also filed two

letters citing supplemental authorities. See Fed. R. App. P. 280).

On or about June 21, 2009, Elliott struck Sylvester Green and Jimmy Tyner with his

truck outside of a bar in downtown Detroit. Both Green and Tyner were seriously injured, and

Green later succumbed to his injuries. A jury convicted Elliott of second degree murder, see

Mich. Comp. Laws § 750.3 17, and felonious assault, see Mich. Comp. Laws § 750.82. The trial

court sentenced him to twenty-seven to fifty years of imprisonment for the murder conviction

and two to four years for the assault conviction. The Michigan Court of Appeals affirmed,

People v. Elliott, No. 301186, 2012 WL 516064 (Mich. Ct. App. Feb. 16, 2012) (per curiam),

and the Michigan Supreme Court denied leave to appeal. Elliott then moved unsuccessfully for

state post-conviction relief.

In 2015, Elliott filed a federal habeas petition, raising thirteen grounds for relief: (1) the

state suppressed audio recordings of his 911 calls; (2) the trial court violated his right to a public

trial by closing the courtroom during jury selection; (3) the trial court violated his confrontation

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-2rights by admitting hearsay medical expert testimony; (4) the state introduced perjured

testimony; (5) trial counsel was ineffective for failing to obtain audio recordings of Elliott's 911

calls; (6) the trial court examined Elliott in a prejudicial manner; (7) the trial court violated

Elliott's right to be present at critical stages of his trial by replying to a jury note outside of his

presence; (8) the trial court violated Elliott's due process rights by failing to enter a jury request

into the record; (9) trial counsel was ineffective for failing to object to the violations asserted in

Grounds 1 through 8; (10) appellate counsel was ineffective for failing to argue Grounds 1

through 9; (11) the trial court erred in instructing the jury on first-degree murder; (12) the trial

court erred in refusing the jury's request to review witness testimony; and (13) the sentencing

guidelines were improperly scored. In September 2016, the district court denied Elliott's

petition, in part on the merits and in part as procedurally defaulted, and declined to issue a COA.

In his COA application, Elliott reasserts the merits of Grounds 1 through 10. Because

Elliott does not argue Ground 12 or 13 in his COA application, he has waived review of these

claims. See Jackson v. United States, 45 F. App'x 382, 385 (6th Cir. 2002).

A COA may issue only if a petitioner makes "a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253(c)(2).

"A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the district court's resolution of his

constitutional claims or 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). Under the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a district court may not

grant habeas relief with respect to any claim adjudicated on the merits in state court unless the

state court's adjudication of the claim 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 "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). In the COA context, this court asks whether the district court's application of

the AEDPA is debatable by reasonable jurists. See Miller-El, 537 U.S. at 336-37. To obtain a

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-3COA when the district court has denied a habeas petition on procedural grounds, a petitioner

must show "that jurists of reason would find it debatable whether the petition states a valid claim

of the denial of a constitutional right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484

(2000).

As an initial matter, to the extent that Elliott alleges that his rights under state law were

violated, reasonable jurists could not disagree that his claims were not cognizable on federal

habeas review. See Estelle v. McGuire, 502 U.S. 62, 67 (1991).

As for Elliott's federal claims, the district court found that Elliott procedurally defaulted

Grounds I through 9. A federal habeas court ordinarily will not review a petitioner's claims if he

"has defaulted his federal claims in state court pursuant to an independent and adequate state

procedural rule." Coleman v. Thompson, 501 U.S. 722, 750 (1991). "To determine whether the

state court rejected a petitioner's claim on procedural grounds, we must look to 'the last reasoned

state court opinion to determine the basis for the state court's rejection of the petitioner's

claim." Amos v. Renico, 683 F.3d 720, 733 (6th Cir. 2012) (quoting Guilmette v. Howes, 624

F.3d 286, 291 (6th Cir. 2010) (en banc)). This court presumes that, "[w]here there has been one

reasoned state judgment rejecting a federal claim, later unexplained orders upholding that

judgment or rejecting the same claim rest upon the same ground." Guilmette, 624 F.3d at 291-92

(quoting Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The Michigan Court of Appeals' order

denying Elliott leave to appeal the trial court's order denying his motion for state post-conviction

relief was the last reasoned state court opinion to reject Grounds 1 through 9. The state appellate

court rejected these claims under Michigan Court Rule 6.508(D)(3), "which is an independent

and adequate state ground sufficient for procedural default that required [Elliott] to raise these

claims during his direct appeal." Amos, 683 F.3d at 733. Accordingly, reasonable jurists would

not find it debatable whether the district court was correct in ruling that Elliott procedurally

defaulted Grounds 1 through 9. See Slack, 529 U.S. at 484.

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-4If a petitioner has procedurally defaulted his claims, "federal habeas review of the claims

is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result

of the alleged violation of federal law, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In Ground 10, Elliott

argues that appellate counsel's ineffectiveness caused his procedural default of Grounds I

through 9. The district court addressed Ground 10 on the merits and found that Elliott had failed

to demonstrate that he was denied the effective assistance of appellate counsel. "We may not

turn directly to the merits of the claim, however, because the Supreme Court has.

.

.

made clear

that 'an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of

another claim can itself be procedurally defaulted." Monzo v. Edwards, 281 F.3d 568, 577 (6th

Cir. 2002) (quoting Edwards v. Carpenter, 529 U.S. 446, 453 (2000)). It is at least arguable that

Ground 10 was procedurally defaulted. However, even assuming that Elliott could establish

cause and prejudice to excuse his procedural default of Ground 10, see id. at 578-79, reasonable

jurists could not disagree that Ground 10 did not entitle him to a writ of habeas corpus.

To establish an ineffective-assistance claim, a habeas petitioner must demonstrate that

counsel's representation "fell below an objective standard of reasonableness" and that he

suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). There is

"a strong presumption that counsel's conduct [fell] within the wide range of reasonable

professional assistance." Id. at 689. Habeas review also mandates the application of a second

layer of deference: a habeas court analyzes only whether the state court was reasonable in its

determination that counsel's performance was adequate. See Burt v. Titlow, 134 S. Ct. 10, 13, 18

(2013); Abby v. Howe, 742 F.3d 221, 226 (6th Cir. 2014). To establish deficient performance in

the appellate context, a petitioner "must demonstrate his appellate counsel made an objectively

unreasonable decision by choosing to raise other issues instead of [the challenged] issue,

meaning that issue 'was clearly stronger than issues that counsel did present." Webb v. Mitchell,

586 F.3d 383, 399 (6th Cir. 2009) (quoting Smith v. Robbins, 528 U.S. 259, 285, 288 (2000)).

The "process of 'winnowing out weaker arguments on appeal and focusing on' those more likely

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-5to prevail, far from being evidence of incompetence, is the hallmark of effective appellate

advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745,

751-52 (1983)). To establish prejudice in the appellate context, a petitioner "must demonstrate

'a reasonable probability that, but for his counsel's unreasonable failure to' raise [the challenged]

issue on appeal, 'he would have prevailed." Webb, 586 F.3d at 399 (quoting Robbins, 528 U.S.

at 285).

After citing the applicable Strickland standard, the trial court noted that, "on appeal,

counsel challenged [Elliott's] conviction on two grounds: (1) the trial court should not have

submitted the charge of first-degree murder to the jury, and (2) the trial court abused its

discretion by foreclosing the jury's opportunity to review testimony of witnesses by informing

the jury that transcripts would not be available for 2 weeks." The trial court found that, "[o]n the

basis of the record," it was "evident" that Elliott had "enjoyed a fair trial and full appeal." The

trial court concluded that Elliott had "failed to overcome the presumption that appellate

counsels' decisions constituted sound strategy," emphasizing that "[a]ppellate counsel may

legitimately winnow out weaker arguments in order to focus on those arguments that are most

likely to prevail." The district court conducted what was effectively a de novo review and

concluded that Ground 10 failed because Grounds 1 through 9 were not clearly stronger than the

claims appellate counsel raised. Reasonable jurists could not disagree with the district court's

determination.

In Ground 1, Elliott argues that the state suppressed audio recordings of 911 calls that he

placed on the night of the offense, in which he stated that the victims had robbed and assaulted

him and the dispatcher told him to remain at the scene to wait for police. Elliott claims that this

evidence would have undercut the prosecution's theory of premeditation. In Brady v. Maryland,

373 U.S. 83 (1963), the Supreme Court held that "the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material either

to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at

87. A Brady claim contains three elements: (1) the evidence "must be favorable to the accused"

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-6because it is exculpatory or impeaching; (2) the state must have suppressed the evidence,

whether "willfully or inadvertently," and (3) the evidence must be material, meaning "prejudice

must have ensued" from its suppression. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). A

defendant is prejudiced "if there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514

U.S. 419, 433-34 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). The

district court found that Elliott failed to establish he was prejudiced because "the verdict

rendered by the jury shows that it did not accept that [Elliott] acted with

. . .

premeditation

because it only found [Elliott] guilty of second-degree murder," and concluded that Ground 1

was not clearly stronger than the claims appellate counsel raised. Reasonable jurists could not

disagree. See Kyles, 514 U.S. at 433-34; Webb, 586 F.3d at 399.

In Ground 2, Elliott argues that the trial court violated his right to a public trial by closing

the courtroom during jury selection. The district court found that Elliott waived this claim by

failing to raise a contemporaneous objection to the closure, and concluded that this claim was

therefore not clearly stronger than the claims appellate counsel raised. Reasonable jurists could

not disagree. See Levine v. United States, 362 U.S. 610, 618 (1960) ("Had petitioner requested,

and the court denied his wish, that the courtroom be opened to the public

.

.

.

we would have a

different case."); Webb, 586 F.3d at 399; see also Peretz v. United States, 501 U.S. 923, 936

(1991) (citing Levine for the proposition that "failure to object to closing of courtroom is waiver

of right to public trial").

In Ground 3, Elliott argues that the trial court violated his confrontation rights by

admitting hearsay medical expert testimony. Specifically, he challenges the medical examiner's

reading into evidence of a police report that concluded Green's homicide was intentional. The

Confrontation Clause prohibits admission of out-of-court testimonial statements by a nontestifying witness unless the witness is unavailable and the defendant had a prior opportunity for

cross-examination. Davis v. Washington, 547 U.S. 813, 821 (2006). However, a court cannot

grant habeas relief on a confrontation violation if the state court's ruling was harmless error.

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-7Jordan v. Warden, Lebanon Corr. Inst., 675 F.3d 586, 598 (6th Cir. 2012). In determining

whether an error was harmless, this court looks to the following factors: "(1) 'the importance of

the witness' testimony in the prosecution's case,' (2) 'whether the testimony was cumulative,'

(3) 'the presence or absence of evidence corroborating or contradicting the testimony of the

witness on material points,' (4) 'the extent of cross-examination otherwise permitted,' and

(5) 'the overall strength of the prosecution's case." Vazquez v. Jones, 496 F.3d 564, 574 n.8

(6th Cir. 2007) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). The district court

concluded that the alleged confrontation violation was harmless because "[t]he eyewitnesses

testified that [Elliott] purposely accelerated his truck into the

. . .

victims," Elliott's "defense was

basically self-defense," "[t]he medical examiner's testimony that he relied on statements that

were also testified-to at trial did not increase the evidence in the prosecutor's case," and defense

counsel used the medical examiner's hearsay testimony to undermine the medical expert's

conclusion that Green's homicide was intentional. Reasonable jurists could not disagree with the

district court's conclusion that Ground 3 was therefore not clearly stronger than the claims

appellate counsel raised. See Webb, 586 F.3d at 399; Vazquez, 496 F.3d at 574n.8.

In Ground 4, Elliott argues that the state introduced perjured testimony. Specifically, he

claims that Sergeant Kevin Hannus perjured himself by testifying that eyewitnesses told him

Elliott "circled the block" before striking the victims. He also claims that eyewitness Samuel

McCree perjured himself by testifying that he was at the intersection where and when the victims

were struck, when in fact he was over one block away. "The burden is on [Elliott] to show that

the testimony was actually perjured, and mere inconsistencies in testimony by government

witnesses do not establish knowing use of false testimony." Peoples v. Lafler, 734 F.3d 503, 516

(6th Cir. 2013) (quoting Brooks v. Tennessee, 626 F.3d 878, 894-95 (6th Cir. 2010)). The

district court found that Ground 4 was based on minor inconsistencies in Hannus and McCree's

testimony, and was therefore not clearly stronger than the claims appellate counsel raised.

Reasonable jurists could not disagree. See Peoples, 734 F.3d at 516; Webb, 586 F.3d at 399.

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-8In Ground 5, Elliott argues that trial counsel was ineffective for failing to obtain audio

recordings of his 911 calls. The district court found that Ground 5 was not clearly stronger than

the claims appellate counsel raised because, "as explained above, the failure to obtain the

recordings was not prejudicial." Reasonable jurists could not disagree. See Strickland, 466 U.S.

at 692; Webb, 586 F.3d at 399.

In Ground 6, Elliott argues that the trial court examined him in a prejudicial manner,

pointing to a brief exchange in which the trial court asked him about his photography business

and whether he took pictures on the night of the offense. The district court found that Elliott's

"argument as to why this was prejudicial [was] too speculative to merit discussion," and

concluded that Ground 6 was not clearly stronger than the claims appellate counsel raised.

Reasonable jurists could not disagree. See Webb, 586 F.3d at 399.

In Ground 7, Elliott argues that he was denied his right to be present at all critical stages

of his trial when the trial court replied to a jury note outside of his presence. A defendant has a

due process "right 'to be present at any stage of the criminal proceeding that is critical to its

outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer,

482 U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). The

district court found that Ground 7 was not clearly stronger than the claims appellate counsel

raised because the record did "not show that [Elliott] was not present when the response to the

note was given and initialed by the attorneys." Reasonable jurists could not disagree. See Webb,

586 F.3d at 399.

In Ground 8, Elliott argues that his due process right to appeal was violated "when the

trial court failed to record [the] jury request proceeding" at issue in Ground 7. "[I]n order to

demonstrate denial of a fair appeal, [a] petitioner must show prejudice resulting from the missing

transcripts." Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986). The district court found that,

"[a]lthough the exchange does not appear in the transcripts, as indicated above, a copy of the

[trial court's] responsive note shows that both the prosecutor and defense counsel were aware of

the requests, as they initialed the response sent to the jury from the court." The district court

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-9concluded that Ground 8 was not clearly stronger than the claims appellate counsel raised

because Elliott "failed to show how he was prejudiced by the omission of [the jury request

proceeding] in the transcripts." Reasonable jurists could not disagree. See Webb, 586 F.3d at

399; Bransford, 806 F.2d at 86.

In Ground 9, Elliott argues that trial counsel was ineffective for failing to object to the

violations undergirding Grounds I through 8. As to trial counsel's failure to object to the

violations asserted in Grounds 1, 3, 4, 5, 6, 7, and 8, reasonable jurists could not disagree with

the district court's conclusion that Ground 9 was not clearly stronger than the claims appellate

counsel raised because, "as explained, none of the alleged errors were sufficiently prejudicial to

merit relief on appeal." See Strickland, 466 U.S. at 692. As to trial counsel's failure to object to

the violation asserted in Ground 2—that is, the closure of the courtroom during jury selection—

reasonable jurists could not disagree that Ground 9 was not clearly stronger than the claims

appellate counsel raised because trial counsel's decision was owed deference as a strategic

choice. See id. at 689. Federal courts have recognized that agreeing to a closure during jury

selection can result in potential jurors being more forthcoming and, consequently, may aid in

selecting desirable jurors. See Horton v. Allen, 370 F.3d 75, 82-83 (1st Cir. 2004) (finding that

counsel's agreement to a closed voir dire was "objectively reasonable strategy designed to elicit

forthcoming responses from the juror"); see also Press-Enterprise Co. v. Superior Court, 464

U.S. 501, 515 (1984) (Blackmun, J., concurring) (recognizing the defendant may have an

"interest in protecting juror privacy in order to encourage honest answers to the voir dire

questions"). Counsel's decision was therefore not unreasonable under the circumstances. See

Strickland, 466 U.S. at 689.

Based on the foregoing, reasonable jurists could not disagree with the district court's

rejection of Ground 10 under what was effectively a de novo review, a standard more favorable

to Elliott than that of § 2254(d), and reasonable jurists therefore could not disagree that Ground

10 did not entitle Elliott to a writ of habeas corpus. See Berghuis v. Thompkins, 560 U.S. 370,

390 (2010) ("[A] habeas petitioner will not be entitled to a writ of habeas corpus if his or her

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10 -

claim is rejected on de novo review."). For similar reasons, reasonable jurists could not disagree

with the district court's conclusion that appellate counsel was not ineffective for failing to raise

Grounds 1 through 9 and, therefore, that Ground 10 did not provide cause to excuse Elliott's

procedural default of Grounds 1 through 9. See Slack, 529 U.S. at 484; Monzo, 281 F.3d at 579.

In his final preserved claim, Ground 11, Elliott argues that the trial court erred in

instructing the jury on first-degree murder, see Mich. Comp. Laws § 750.3 16, because the state

presented insufficient evidence to establish that he acted with premeditation. The relevant

question in reviewing this jury-instruction claim is whether "there was sufficient evidence from

which to conclude that [Elliott] was guilty of first degree murder"; if so, then Ground 11 "must

fail." Daniels v. Burke, 83 F.3d 760, 765 (6th Cir. 1996). Habeas review of a sufficiency-of-theevidence claim centers on whether the district court erred in concluding that the state courts

reasonably applied Jackson v. Virginia, 443 U.S. 307 (1979). Jackson established that, when

reviewing a sufficiency challenge, "the relevant question 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." Id. at 319. Jackson and the AEDPA

command deference to both the jury's verdict and the state court's consideration of that verdict.

Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011).

In rejecting Ground 11, the Michigan Court of Appeals summarized the state's evidence

as follows: On the night of the offense, Elliott was involved in a bar fight with Green and Tyner.

Elliott, 2012 WL 516064, at *1. After the fight was broken up, Elliott left the bar but remained

in the area for over an hour, circling the block in his truck and then parking in front of the bar.

Id. When Green and Tyner left the bar, Elliott accelerated and struck both men with his truck,

causing serious injuries to Green and Tyner that later resulted in Green's death. Id. The state

appellate court concluded that Elliott's "actions after the bar fight and before the murder and

assault supported a reasonable inference that the defendant had more than enough time to take a

second look at his actions," and found that the state "therefore presented sufficient evidence of

premeditation and deliberation." Id. Reasonable jurists could not disagree with the district

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-11court's conclusion that the state appellate court's decision was not contrary to, or an

unreasonable application of, clearly established federal law, or based on an unreasonable

determination of the facts. See 28 U.S.C. § 2254(d)(1), (2).

Finally, because Elliott's citations of supplemental authority go only to the merits of his

procedurally defaulted claims, these decisions do not entitle him to the requested relief.

For these reasons, the COA application is DENIED.

ENTERED BY ORDER OF THE COURT

/a

5~~Uw

Deborah S. Hunt, Clerk

Page: 1

Case: 16-..-98 Document: 12-2 Filed: 01/10/2018

(2 of 2)

No. 16-2498

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARK ELLIOTT,

Petitioner-Appellant,

V.

CARMEN DENISE PALMER, Warden,

Respondent-Appellee.

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)

)

)

)

)

)

)

)

FILED

Jan 10, 2018

DEBORAH S. HUNT, Clerk

ORDER

Before: COLE, Chief Judge; MERRITT and BOGGS, Circuit Judges.

Mark Elliott, a Michigan prisoner proceeding pro se, petitions for rehearing of this

court's June 14, 2017, order denying him a certificate of appealability. The application for a

certificate of appealability arose from a district court's judgment denying Elliott's petition for a

writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254.

Upon careful consideration, this panel concludes that the court did not misapprehend or

overlook any point of law or fact when it issued its order.

See Fed. R. App. P. 40(a).

Accordingly, Elliott's petition for rehearing is DENIED.

ENTERED BY ORDER OF THE COURT

/a5;.4UW

Deborah S. Hunt, Clerk

Case 4:15-cv-10685-TGB-APP ECF No. 11 filed 09/27/16 PagelD.2030 Page 1 of 28

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARK ELLIOTT,

Petitioner,

Case No. 15-10685

HON. TERRENCE G. BERG

V.

CARMEN PALMER,

Respondent.

OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS

CORPUS, (2) DENYING PETITIONER'S PENDING MOTIONS, (3)

DENYING A CERTIFICATE OF APPEALABILITY, AND (4) GRANTING

PERMISSION TO APPEAL IN FORMA PAUPERIS

This is a habeas case brought by a Michigan prisoner under 28 U.S.C. § 2254.

Petitioner Mark Elliott was convicted after a jury trial in the Wayne Circuit Court

of second-degree murder, MICH. COMP. LAWS §750.317, and felonious assault, MICH.

COMP. LAWS §750.82. He was sentenced to concurrent terms of 27 to 50 years for the

murder conviction and 2 to 4 years for the assault conviction.

The petition raises thirteen claims: (1) the prosecutor suppressed recordings

of Petitioner's 911 calls, (2) members of the public were excluded from the jury

selection proceedings, (3) Petitioner's confrontation rights were violated by the

admission of hearsay, (4) the prosecutor presented false evidence, (5) trial counsel

was ineffective for failing to secure the suppressed 911 recordings, (6) the trial court

injected into the trial its own theory of the case, (7) a jury note was answered by the

trial court outside Petitioner's presence, (8) the trial court failed to put its response

Case 4:15-cv-10685-TGB-APP ECF No. 11 filed 09/27/16 PagelD.2031 Page 2 of 28

to the jury note in the record, (9) trial counsel was ineffective for failing to preserve

the above claims, (10) appellate counsel was ineffective for failing to raise the above

claims on direct appeal, (11) there was insufficient evidence presented at trial to

instruct the jury on first-degree murder, (12) the trial court erroneously refused the

jury's request to review the testimony of four witnesses, and (13) the sentencing

guidelines were scored based on inaccurate information.

The Court denies the petition because review of Petitioner's first ten claims is

barred by his procedural defaults, and because the state court adjudication of his

remaining claims did not involve an unreasonable application of clearly established

Supreme Court law. The Court also denies Petitioner's pending motions, denies

Petitioner a certificate of appealability, but grants Petitioner permission to proceed

on appeal in forma pauperis.

I. FACTUAL BACKGROUND

The charges against Petitioner involved a hit-and-run occurring on June 20,

2009, about a block away from the Next Level Bar in downtown Detroit where

Sylvester Green was killed and Jimmy Tyner was injured. The incident stemmed

from an earlier fight between Petitioner and Green that occurred inside the bar.

According to the trial testimony of eyewitnesses, Petitioner arrived at the

bar with Lynn Nelson and Antoinette Jones-Winn. Petitioner was a photographer

and was taking pictures and distributing business cards inside the bar. At some

point Petitioner either dropped his glasses or set them on the bar and went to the

dance floor. Green handled the glasses, and when Petitioner saw this, words were

Case 4:15-cv-10685-TGB-APP ECF No. 11 filed 09/27/16 PagelD.2032 Page 3 of 28

exchanged and a fight between the two men ensued. Green got the better of

Petitioner, and Green was on top of Petitioner and punching him in the face.

Security guards grabbed both men and removed them from the bar. This occurred

near 2:00 am.

Green was subsequently allowed back into the bar. Several witnesses noticed

Petitioner sitting in his truck in front of the bar. Nelson went outside to talk to

Petitioner and advised him the bar was owned by Green's family and that he should

leave.

Sometime after 3:00 a.m., Green and Tyner came out of the bar and walked

towards a parked bus. Bobbie Sparks was the bus driver. As Green and Tyner were

standing outside the bus and talking with Sparks, Petitioner was seen revving his

engine, turning the corner, and then hitting both Green and Tyner with his vehicle

and striking the bus. Sparks testified that the victims first tried to ask him a

question from the closed door of his bus, and then they walked around to his streetside window when they were struck by the truck. Sparks testified that the force of

the impact pushed him out of his seat and into the aisle of the bus.

Witnesses saw that Tyner was stuck under the truck as Petitioner drove

away. Petitioner eventually struck a curb, freeing Tyner from under his vehicle.

Green was lying in the street in front of the bus. Bar patrons Willie Webb and

Tniesha Green identified Petitioner as the driver of the truck.

Samuel McCree, who was driving in the area, testified that he saw Petitioner

at a traffic light. McCree flashed his lights at Petitioner to signal that Petitioner's

Case 4:15-cv-10685-TGB-APP ECF No. 11 filed 09/27/16 PagelD.2033 Page 4 of 28

headlights were off. McCree saw Green and Tyner walking on the sidewalk at the

same time Petitioner was stopped at the traffic light. McCree thought Green and

Tyner were crossing the street in front of a parked bus. McCree saw Petitioner

accelerate from the light and strike the bus. McCree stopped to make sure the bus

driver was okay and then noticed Green on the ground in front of the bus. McCree

called 911.

Petitioner testified in his own defense. He testified that he had been

assaulted by Green and Tyner at the bar. Green snatched the glasses from his face,

and Tyner tried to take his camera. After the two men assaulted him, he was told to

leave the bar.

Petitioner testified that while he waited in his truck about eight people

including the victims exited the bar, surrounded his truck, and started to curse at

him. Jones-Winn similarly described Petitioner's truck being surrounded and

Petitioner's camera being taken from the truck.

Petitioner testified that he called 911 to report the robbery, and he waited as

instructed by the 911 operator for police to arrive. While he was waiting, he saw a

bus parked in front of him, and then he saw the victims approach his truck. He was

afraid that Tyner was armed, so he pulled out of his parking space, sideswiped the

bus, and drove away. He turned himself into police six weeks later when he learned

he was accused of hitting two people with his truck.

Petitioner introduced 911 call records showing that he did, in fact, call 911

six times, and that he reported an armed robbery. The records documented the time

4

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the calls were made, that they were made from Petitioner's cell phone, and

Petitioner's location when he made the calls. Petitioner's final call to 911 was made

at 3:09 am. The 911 calls reporting the hit and run came in at 3:16 am.

Based on this evidence, the jury found Petitioner guilty of the lesser offenses

of second-degree murder and felonious assault.

Following his convictions and sentences, Petitioner was appointed appellate

counsel who filed a claim of appeal in the Michigan Court of Appeals. Petitioner's

appellate brief raised what now form his eleventh, twelfth, and thirteenth habeas

claims. The Michigan Court of Appeals affirmed Petitioner's convictions in an

unpublished opinion. People v. Elliott, No. 301186, 2012 WL 516064 (Mich. Ct. App.

Feb. 16, 2012).

Petitioner subsequently filed an application for leave to appeal in the

Michigan Supreme Court which raised the same three claims he raised in the

Michigan Court of Appeals. Petitioner also added what now form his first, second,

fourth, fifth, and ninth habeas claims to his application. The Michigan Supreme

Court denied the application because it was not persuaded that the questions

presented should be reviewed by the Court. People v. Elliott, 819 N.W.2d 579 (Mich.

2012) (unpublished table decision).

Petitioner returned to the trial court and filed a motion for relief from

judgment, raising what now form his first through tenth habeas claims. The trial

court denied the motion for relief from judgment in an opinion and order dated June

5

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PagelD.2035 Page 6 of 28

3, 2013, finding that Petitioner failed to comply with Michigan Court Rule

6.508(D)(3).

Petitioner then filed an application for leave to appeal in the Michigan Court

of Appeals, but the court denied relief because "defendant allege [d] grounds for

relief that could have been raised previously and he had failed to establish both

good cause for failing to previously raise the issues and actual prejudice from the

irregularities alleged, and ha[d] not established that good cause should be waived.

MCR 6.508(D)(3)(a) and (b)." People v. Elliott, No. 317796 (Mich. Ct. App. Order,

Jan. 24, 2014).

Petitioner applied for leave to appeal this decision in the Michigan Supreme

Court but it denied relief citing Rule 6.508(D). People v. Elliott, 849 N.W.2d 376

(Mich. 2014) (unpublished table decision).

II. STANDARD OF REVIEW

Title 28 U.S.C. § 2254(d) curtails a federal court's review of constitutional

claims raised by a state prisoner in a habeas corpus action if the claims were

rejected on the merits by the state courts. Relief is bared under this section unless

the state court adjudication was "contrary to" or resulted in an "unreasonable

application of' clearly established Supreme Court law.

"A state court's decision is 'contrary to'

.

.

.

clearly established law if it

'applies a rule that contradicts the governing law set forth in [Supreme Court

cases]' or if it 'confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme] Court and nevertheless arrives at a result different from

Case 4:15-cv-10685-TGB-APP ECF No. 11 filed 09/27/16 PagelD.2036 Page 7 of 28

[this] precedent." Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam)

(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

"[T]he 'unreasonable application' prong of the statute permits a federal

habeas court to 'grant the writ if the state court identifies the correct governing

legal principle from [the Supreme] Court but unreasonably applies that principle to

the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting

Williams, 529 U.S. at 413).

Demonstrating that a state court unreasonably applied clearly established

Supreme Court law is no easy task because "[a] state court's determination that a

claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could

disagree' on the correctness of the state court's decision." Harrington v. Richter, 562

U.5.86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

"Section 2254(d) reflects the view that habeas corpus is a guard against extreme

malfunctions in the state criminal justice systems, not a substitute for ordinary

error correction through appeal.

.

.

.

As a condition for obtaining habeas corpus from

a federal court, a state prisoner must show that the state court's ruling on the claim

being presented in federal court was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement." Harrington, 562 U.S. at 103 (internal quotation

omitted).

7

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III. ANALYSIS

A. Sufficiency of the Evidence

The Court will address Petitioner's preserved claims first. Petitioner's

eleventh claim asserts that there was insufficient evidence of premeditation and

deliberation to support submitting the first-degree murder charge to the jury.

Petitioner asserts that the prosecutor rested its allegation that he acted with

premeditation on the untrustworthy testimony that he was seen circling the block

for a period of time before hitting the victims with his truck. Petitioner lists a

number items presented at trial that undermine the prosecutor's theory with

respect to this charge. (Dkt. 1, Brief, at 122-123).

Petitioner was acquitted of first-degree murder, however, and found guilty of

the lesser offense of second-degree murder. "[C]learly established Supreme Court

law provides that a defendant has a right not to be convicted except upon proof of

every element of a crime beyond a reasonable doubt; the Supreme Court has never

held that the submission of a charge, upon which there is insufficient evidence,

violates a defendant's constitutional rights where the defendant is acquitted of that

charge." Long v. Stovall, 450 F. Supp. 2d 746, 752 (E.D. Mich. 2006) (quoting

Skrzycki v. Lafler, 347 F. Supp.2d 448, 453 (E.D. Mich. 2004) (emphasis original);

See also Aldrich v. Bock, 327 F. Supp. 2d 743, 761-62 (E.D. Mich. 2004). A number

of cases have held that the submission to a jury of a criminal charge constitutes

harmless error where the habeas petitioner is acquitted of that charge. Daniels v.

Burke, 83 F. 3d 760, 765, n. 4 (6th Cir. 1996); Long, 450 F. Supp. 2d at 752; Aldrich,

1.1

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327 F. Supp. 2d at 761; Johnson v. Hofbauer, 159 F. Supp. 2d 582, 596 (E.D. Mich.

2001); But see Williams v. Jones, 231 F. Supp. 2d 586, 593-94 (E.D. Mich. 2002)

(finding this claim cognizable).

In light of the fact that Petitioner was acquitted of the first-degree

premeditated murder charge and only found guilty of the lesser included offense of

second-degree murder, any error in submitting the first-degree premeditated

murder charge to the jury would not entitle petitioner to habeas relief because such

a claim cannot be based on clearly established Supreme Court law. See King v.

Trippett, 27 Fed. Appx. 506, 510 (6th Cir. 2001) (petitioner who alleged that the

trial court improperly refused to enter a directed verdict on his armed robbery

charge, even though the jury subsequently acquitted him on that charge, failed to

state a claim sufficient for habeas corpus relief).

Moreover, contrary to Petitioner's arguments, there was sufficient evidence of

premeditation and deliberation to support submitting the first-degree murder

charge to the jurors. "The Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364

(1970). The critical inquiry on review of the sufficiency of the evidence to support a

criminal conviction is, "whether the record evidence could reasonably support a

finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318

(1979). This inquiry, however, does not require a court to "ask itself whether it

believes that the evidence at the trial established guilt beyond a reasonable doubt."

9

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Instead, the relevant question 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. Id. at 318-19 (internal

citation and footnote omitted) (emphasis in the original).

To constitute first-degree murder in Michigan, the prosecution must establish

that a defendant's intentional killing of another was deliberate and premeditated.

See Scott v. Elo, 302 F. 3d 598, 602 (6th Cir. 2002) (citing People v. Schollaert, 194

Mich. App. 158 (1992)). The elements of premeditation and deliberation may be

inferred from the circumstances surrounding the killing. See Johnson v. Hofbauer,

159 F. Supp. 2d at 596) (citing People v. Anderson, 209 Mich. App. 527, 537 (1995)).

Although the minimum time required under Michigan law to premeditate "is

incapable of exact determination, the interval between initial thought and ultimate

action should be long enough to afford a reasonable man time to subject the nature

of his response to a 'second look." See Williams v. Jones, 231 F. Supp. 2d at 594-95

(quoting PeOple v. Vail, 393 Mich. 460, 469 (1975)). "A few seconds between the

antagonistic action between the defendant and the victim and the defendant's

decision to murder the victim may be sufficient to create a jury question on the

issue of premeditation." Alder v. Burt, 240 F. Supp. 2d 651, 663 (E.D. Mich. 2003).

"[A]n opportunity for a 'second look' may occur in a matter of seconds, minutes, or

hours, depending upon the totality of the circumstances surrounding the killing."

Johnson, 159 F. Supp. 2d at 596 (quoting People v. Bert hiaume, 59 Mich. App. 451,

456 (1975)).

10

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Premeditation and deliberation may be inferred from the type of weapon used

and the location of the wounds inflicted. See People v. Berry, 198 Mich. App. 123,

128 (1993). Use of a lethal weapon will support an inference of an intent to kill.

Johnson, 159 F. Supp. 2d at 596 (citing People v. Turner, 62 Mich. App. 467, 470

(1975)). Finally, premeditation and intent to kill may be inferred from

circumstantial evidence. See DeLisle v. Rivers, 161 F. 3d 370, 389 (6th Cir. 1998).

As the Michigan Court of Appeals noted in rejecting Petitioner's claim, there

was sufficient evidence of premeditation and deliberation to support submitting the

first-degree murder charge to the jurors. Even if one accepts Petitioner's arguments

and discounts the allegedly biased witnesses' testimony, and even if one further

assumes that Petitioner stayed at the scene because he was directed to do so by the

911 operator, there was still sufficient evidence presented to sustain a first-degree

murder charge. One need only look to the testimony of Bobbie Sparks and Samuel

McCree, both unrelated to the victims. McCree saw Petitioner creeping forward on

Brush Street in his truck very slowly with his headlights off. (Dkt. 5-12, at 156).

McCree saw the two victims next to a city bus on Lamed Street, standing on the

street side of the bus. (Id. at 157). Petitioner then "took-off," made a right turn onto

Lamed, and hit the bus. (Id. at 139). Sparks, the bus driver, similarly testified that

the victims just approached the street-side of the bus after asking him for directions

from the sidewalk side. (Dkt. 5-11, at 136-37). One of the two men tapped on his

window, presumably to ask another question, when both men were hit by

Petitioner's truck. (Id.)

11

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Viewing these two witnesses' testimony alone in a light most favorable to the

prosecution would allow a rational fact-finder to conclude beyond a reasonable

doubt that Petitioner acted with premeditation and deliberation.

Petitioner's argument that the prosecutor theorized that Petitioner planned

to attack the victims for a longer period of time is beside the point. One can even

concede that Petitioner called 911 and was waiting for police as instructed. The

evidence nevertheless allowed for a finding beyond a reasonable doubt that despite

whatever peaceful intention Petitioner may have possessed earlier, he changed his

mind and, with premeditation and deliberation, drove his truck directly into the

victims when the opportunity presented itself.

For these reasons, clearly established Supreme Court law does not support

Petitioner's claim, and, in any event, there was sufficient evidence of premeditation

and deliberation so as to warrant submitting the first-degree murder charge to the

jury. Accordingly, Petitioner is not entitled to relief on this claim.

B. Jury Request for Transcripts

Petitioner next contends that his right to a fair trial was violated when the

trial court refused the jurors' request to review the transcripts of the testimony of

McCree, Sparks, Tniesha Green, and Antoinette Jones. The trial court instructed

the jury that the transcripts would not be available for another two weeks, and that

they should rely on their collective memory.

Petitioner asserts that the trial court violated Michigan Court Rule 6.414(11)

in denying the jury's request. A violation of state law, however, cannot form the

12

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basis for granting habeas relief, which must be based on a violation of federal law.

See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). There is no

federal constitutional right which requires that a jury be provided with a witness's

testimony. See Bradley v. Birkett, 192 F. App'x 468, 477 (6th Cir. 2006). Nor does

United States Supreme Court precedent require a judge to re-read testimony of

witnesses. See Friday v. Straub, 175 F. Supp. 2d 933, 939 (E.D. Mich. 2001). A

habeas petitioner's claim that a state trial court violated his right to a fair trial by

refusing to grant a jury request for transcripts is therefore not cognizable in a

habeas proceeding. Bradley, 192 F. App'x at 477; Spalla v. Foltz, 615 F. Supp. 224,

233-34 (E.D. Mich. 1985).

Given the lack of Supreme Court rulings on the issue of whether a state trial

judge is required to re-read the testimony of witnesses or provide transcripts of

their testimony to jurors upon their request, the Michigan Court of Appeals'

rejection of Petitioner's claim was not an unreasonable application of clearly

established federal law. See Wright v. Van Patten, 552 U.S. 120, 126 (2008); Carey v.

Musladin, 549 U.S. 70, 77 (2006).

C. Sentencing Guidelines

Petitioner next contends that the judge improperly scored Offense Variable 1

of the Michigan Sentencing Guidelines by considering factors that had not been

proven beyond a reasonable doubt nor admitted by Petitioner.

Petitioner's claim that the state trial court incorrectly scored or calculated his

sentencing guidelines range under the Michigan Sentencing Guidelines is not a

13

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cognizable claim for federal habeas review, because it is basically a state law claim.

See Tironi v. Birkett, 252 Fed. App'x. 724, 725 (6th Cir. 2007); Howard v. White, 76

Fed. App'x. 52, 53 (6th Cir. 2003); see also Haskell v. Berghuis, 695 F. Supp. 2d 574,

598 (E.D. Mich. 2010); Coy v. Renico, 414 F. Supp. 2d 744, 780 (E.D. Mich. 2006).

"Petitioner has no state-created interest in having the Michigan Sentencing

Guidelines applied rigidly in determining his sentence." See Mitchell v. Vasbinder,

644 F. Supp. 2d 846, 867 (E.D. Mich. 2009) (citing Shanks v. Wolfenbarger, 387 F.

Supp. 2d 740, 752 (E.D. Mich. 2005)). "[I]n short, petitioner had no federal

constitutional right to be sentenced within Michigan's guideline minimum sentence

recommendations." Doyle v. Scutt, 347 F. Supp. 2d 474, 485 (E.D. Mich. 2004). Any

error by the trial court in calculating his guideline score would not merit habeas

relief. Id.

Petitioner contends that the trial court judge violated his Sixth Amendment

right to a trial by jury by using factors that had not been submitted to a jury and

proven beyond a reasonable doubt or admitted to when scoring the Michigan

Sentencing Guidelines.

On June 17, 2013, the United States Supreme Court ruled that any fact that

increases the mandatory minimum sentence for a crime is an element of the

criminal offense that must be proven beyond a reasonable doubt. See Alleyne v.

United States, 133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314 (2013). Alleyne is an

extension of the Supreme Court's holdings in Apprendi v. New Jersey, 530 U.S. 466

(2000), and Blakely v. Washington, 542 U.S. 296 (2004), in which the Supreme

14

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Court held that any fact that increases or enhances a penalty for a crime beyond the

prescribed statutory maximum for the offense must be submitted to the jury and

proven beyond a reasonable doubt. In reaching this conclusion, the Supreme Court

overruled Harris v. United States, 536 U.S. 545 (2002), in which the Supreme Court

had held that only factors that increase the maximum sentence, as opposed to the

minimum sentence, must be proven beyond a reasonable doubt to a fact finder.

Alleyne, 133 S. Ct. at 2157-58.

At the time of Petitioner's conviction and sentence, Harris was good law. In

addition, Alleyne has not been made retroactive to cases on collateral review. See In

re Mazzio, 756 F.3d 487, 489-90 (6th Cir. 2014). Although the Michigan Supreme

Court recently relied on Alleyne to hold that Michigan's Sentencing Guidelines

scheme violates the Sixth Amendment right to a jury trial, see People v. Lockridge,

498 Mich. 358 (2015), a federal district court may only grant habeas relief if it finds

that the state court's decision was "contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States" or "was based on an unreasonable determination of the facts

in light of the evidence that was presented in the State court proceeding." Peak v.

Webb, 673 F.3d 465, 472 (6th Cir. 2012). In addition, "[t]he law in question must

have been clearly established at the time the state-court decision became final, not

after." Id. (citing Williams v. Taylor, 529 U.S. at 380). Because the Supreme Court

at the time of Petitioner's conviction did not require that facts which increase a

criminal defendant's minimum sentence be proven beyond a reasonable doubt-

15

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which is the only part of the Petitioner's sentence that the guidelines control—

Petitioner is not entitled to habeas relief on this claim.

D. Claims Raised on State Collateral Review

Petitioner's remaining claims, his first through his tenth, were exhausted in

the state courts during his state collateral review proceeding under Michigan Court

Rule 6.501 et seq. Respondent contends that these claims are procedurally defaulted

because the state courts found that Petitioner failed to show "good cause" and

"actual prejudice" for failing to raise these claims in his appeal of right, as required

by Michigan Court Rule 6.508(D)(3).

When the state courts clearly and expressly rely on a valid state procedural

bar, federal habeas review is also barred unless the petitioner can demonstrate

cause and prejudice to excuse the default. Coleman v. Thompson, 501 U.S. 722, 75051 (1991). If a petitioner fails to show cause for his procedural default, it is

unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S.

527, 533 (1986). In an extraordinary case, where a constitutional error has probably

resulted in the conviction of one who is actually innocent, a federal court may

consider the constitutional claims presented even in the absence of a showing of

cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-80 (1986).

The Supreme Court has noted that "a procedural default does not bar

consideration of a federal claim on either direct or habeas review unless the last

state court rendering a judgment in the case 'clearly and expressly' states that its

judgment rests on the procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989). If

16

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the last state court judgment contains no reasoning, but simply affirms the

conviction in a standard order, the federal habeas court must look to the last

reasoned state court judgment rejecting the federal claim and apply a presumption

that later unexplained orders upholding the judgment or rejecting the same claim

rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

The Michigan Supreme Court rejected Petitioner's post-conviction appeal on

the ground that "the defendant has failed to meet the burden of establishing

entitlement to relief under MCR 6.508(D)." This order is ambiguous as to whether it

refers to procedural default or a denial of post-conviction relief on the merits. See

Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010). This Court must "therefore

look to the last reasoned state court opinion to determine the basis for the state

court's rejection" of Petitioner's claims. Id.

The Michigan Court of Appeals denied Petitioner's post-conviction appeal,

holding that "the defendant alleges grounds for relief that could have been raised

previously and he has failed to establish good cause for failing to previously raise

the issues, and had not established that good cause should be waived. MCR

6.508(D)(3)(a)." People v. Sanders, No. 317796 (Mich. Ct. App. January 23, 2014).

The Michigan Court of Appeals clearly denied Petitioner post-conviction relief based

on the procedural grounds stated in M.C.R. 6.508(D)(3), thus, Petitioner's postconviction claims are procedurally defaulted. See Ivory v. Jackson, 509 F.3d 284,

292-93 (6th Cir. 2007). See also Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir.

2005).

17

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Petitioner alleges in his tenth claim that ineffective assistance of appellate

counsel excuses his procedural default. Petitioner, however, has not shown that

appellate counsel was ineffective. It is well-established that a criminal defendant

does not have a constitutional right to have appellate counsel raise every nonfrivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745, 751 (1983). The United

States Supreme Court has explained:

For judges to second-guess reasonable professional judgments and

impose on appointed counsel a duty to raise every "colorable" claim

suggested by a client would disserve the. goal of vigorous and

effective advocacy.

Nothing in the Constitution or our

interpretation of that document requires such a standard.

.

.

.

.

.

Id. at 463 V.S. at 754.

The Supreme Court has subsequently noted that it is still possible to bring an

ineffective assistance of appellate counsel claim based on counsel's failure to raise a

particular claim on appeal, "but it is difficult to demonstrate that counsel was

incompetent." Smith v. Robbins, 528 U.S. 259, 288 (2000). Strategic and tactical

choices regarding which issues to pursue on appeal are "properly left to the sound

professional judgment of counsel." United States v. Perry, 908 F.2d 56, 59 (6th Cir.

1990). In fact, "the hallmark of effective appellate advocacy" is the "process of

'winnowing out weaker arguments on appeal and focusing on' those more likely to

prevail." Smith v. Murray, 477 U.S. at 536 (quoting Barnes, 463 U.S. at 751-52).

"Generally, only when ignored issues are clearly stronger than those presented will

the presumption of effective assistance of appellate counsel be overcome." Monzo v.

Edwards, 281 F.3d 568, 579 (6th Cir. 2002). Appellate counsel may deliver deficient

18

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performance and prejudice a defendant by omitting a "dead-bang winner," which is

defined as an issue which was obvious from the trial record and would have resulted

in a reversal on appeal. See Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich.

2003).

Petitioner has failed to show that appellate counsel's performance fell outside

the wide range of professionally competent assistance by omitting the claims raised

by Petitioner on state collateral review. Petitioner was represented by an

experienced criminal appellate attorney, Jonathan B.D. Simon, who filed a brief

which included what now form Petitioner's last three habeas claims. Petitioner has

not shown that appellate counsel's strategy in presenting these claims and not

raising his other claims was deficient or unreasonable.

None of the claims raised by Petitioner in his post-conviction motion were

"dead bang winners," or were clearly stronger than the claims that appellate

counsel raised in Petitioner's direct appeal. Petitioner first claims that the

recordings of his 911 calls were suppressed or destroyed by the police. Petitioner

asserts that the recordings would have revealed that he stated during the calls that

he was the victim of a robbery and was told by the operator to stay at the scene and

wait for police. Petitioner alleges that had the jury heard the recordings they would

have heard that he claimed to be the victim of a robbery and that he merely stayed

at the scene and waited for the police to arrive as instructed, thus showing that he

had peaceful intentions.

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Even assuming that Petitioner could show that the tapes were suppressed,

however, Petitioner was nevertheless required to show that the suppression was "so

serious that there is a reasonable probability that the suppressed evidence would

have produced a different result" at trial. See Strikier v. Greene, 527 U.S. 263, 281

(1999).

The record shows that while the actual recordings were not produced at trial,

records were presented indicating that Petitioner made 911 calls and claimed to

have been robbed. (Dkt. 5-14, at 6-49). Accepting Petitioner's allegations as true, the

only material information missing from trial is that the operator told Petitioner to

stay at the scene and any statements by Petitioner indicating his peaceful

intentions to the operator. This information would have potentially undermined

part of the prosecutor's argument in support of premeditation and deliberation. It

would have tended to negate the theory that Petitioner waited outside the bar for a

considerable period of time and all along was planning on attacking the victims.

But the verdict rendered by the jury shows that it did not accept that

Petitioner acted with such premeditation because it only found Petitioner guilty of

second-degree murder. That is, the jury presumably found that Petitioner drove into

the victims not with premeditation and deliberation but rather only when the

opportunity presented itself. Thus even if the recordings contained the information

Petitioner believes that they do, presenting them would not undermine the jury's

finding that he was guilty of second-degree murder. Nothing Petitioner told the 911

operator, and nothing the operator told him, change the fact that he hit the victims

20

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with his truck as they stood next to the bus and attempted to engage the bus driver

in conversation. There is no reasonable probability, therefore, that the result of the

trial would have been more favorable had the recording been presented at trial.

This claim is not the "dead-bang winner" Petitioner claims it to be.

Petitioner's second claim asserts that his right to a public trial was violated

by exclusion of members of the public from jury selection. The record shows that

spectators were cleared from the courtroom and then told they could return after

the jury venire was seated. (Dkt. 5-10, at 3). There was no objection. (Id.) The right

to a public trial is waived if no objection is made. Peretz v. United States, 501 U.S.

923, 936 (1991); Johnson v. Sherry, 586 F.3d 439, 444 (6th Cir. 2009). This waived

claim was not clearly stronger than the claims raised by appellate counsel.

Petitioner's third claim asserts that his right to confrontation was violated

when the medical examiner testified regarding conclusions made in a report not

generated by him that the act that killed Green was intentional. Like his previous

claim, there was no objection, and any claim of error was therefore waived.

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314 n. 3 (2009).

Moreover, it is clear that any error was harmless. The medical examiner

merely testified on cross-examination that he concluded a homicide occurred based,

in part, on information provided to him by others. (Dkt. 5-12, at 121-125). The

eyewitnesses testified that Petitioner purposely accelerated his truck into the bus

and the victims. Petitioner's defense was basically self-defense. The medical

examiner's testimony that he relied on statements that were also testified-to at trial

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did not increase the evidence in the prosecutor's case. Indeed, it was a fact used by

defense counsel to undermine the medical examiner's conclusion. (Id. at 123-125).

Appellate counsel did not perform deficiently by omitting this claim.

Petitioner's fourth claim asserts that the prosecutor committed misconduct

by offering the perjured testimony of Sgt. Keven Hannus and eyewitness McCree.

With respect to McCree, Petitioner asserts that his statement to Officer Brooks and

the 911 operator and the cell phone records show that he was actually over one

block away from the collision site when the accident occurred, and not at the

intersection of Lamed and Brush, as he testified to at trial.

Petitioner has not shown that McCree's testimony was indisputably false, as

required to support a claim of misconduct. See Byrd v. Collins, 209 F.3d 486, 517

(6th Cir. 2000). Brooks' recollection of McCree's statement that he was in front of

the bar was rather vague and never developed further at trial. (Dkt. 5-12, at 15).

The cell phone records do not indisputably show that McCree was standing in front

of the Next Level Bar, as Petitioner asserts. (See Petitioner's Appx. XVII). Rather,

McCree's trial testimony, as is commonly the case with eyewitnesses to a violent

crime, contained minor inconsistencies. Nevertheless, as early as the day following

the incident, McCree told police that he was driving at the intersection of Lamed

and Brush when he witnessed the incident. (See Petitioner's Appx. XVIII).

Petitioner also claims that Sgt. Hannus committed perjury by testifying that

eyewitnesses told him that Petitioner "circled the block." Again, this matter involves

relatively minor inconsistencies in the witnesses' testimony. In any event, even

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Case 4:15-cv-10685-TGB-APP ECP No. 11 filed 09/27/16 PagelD.2052 Page 23 of 28

Petitioner testified that he stayed in the area after he left the bar. Whether he

drove a short distance and waited for police to arrive or "circled" is a matter of

characterization not prejudicial enough to require appellate counsel to raise the

issue. Moreover, because the jury acquitted Petitioner of first-degree murder, the

alleged misconduct was harmless. Appellate counsel did not perform deficiently by

failing to raise these arguments.

Petitioner's fifth claim asserts that his trial counsel was ineffective for failing

to secure the recordings of his 911 calls. Petitioner has provided the Court with

transcripts of all the pretrial hearings at which his trial attorneys used their best

efforts to secure the recordings. (See Exhibits to Dkt. 8). A review of the pretrial

proceedings show that counsels' efforts to secure the recordings—including holding

multiple pretrial conferences, working directly with the prosecutors, filing a

Freedom of Information Act request, and obtaining a subpoena—did not constitute

deficient performance under Strickland v. Washington, 466 U.S. 668 (1984). (See

Exhibits C

-

G to Dkt. 8). Moreover, as explained above, the failure to obtain the

recordings and use them at trial was not prejudicial. Appellate counsel did not

perform deficiently by failing to raise this claim.

Petitioner's sixth claim asserts that the trial court's examination of Petitioner

during his trial testimony was prejudicial and rendered his trial unfair. The record

shows that the trial court briefly questioned Petitioner regarding his photography

business and whether he took pictures on the night of the incident. Petitioner's

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Case 4:15-cv-10685-TGB-APP ECF No. 11 filed 09/27/16 PagelD.2053 Page 24 of 28

argument as to why this was prejudicial is too speculative to merit discussion. The

claim is frivolous, and appellate counsel did not perform deficiently by omitting it.

Petitioner's seventh claim asserts that his right to be present was violated

when the trial court sent a reply to a jury note during deliberations outside his

presence. The jury requested the 911 call records and transcripts of the testimony of

several witnesses. The record shows that both attorney's waived their appearances

in the event the jury requested exhibits during deliberations. (See Dkt. 5-17, at 6).

The record does not show that Petitioner was not present when the response to the

note was given and initialed by the attorneys. (See Dkt. 1, Exhibit VIII, at 2). This

unpreserved claim is not clearly stronger than the claims raised by appellate

counsel during direct appeal, and he was therefore not ineffective for failing to raise

it on direct appeal.

Petitioner's eighth claim asserts that the trial court erred by failing to make

the jury note and its response to the note part of the trial record, denying him his

right to appeal. Although the exchange does not appear in the transcripts, as

indicated above, a copy of the responsive note shows that both the prosecutor and

defense counsel were aware of the requests, as they initialed the response sent to

the jury from the court. (See Dkt. 1, Exhibit VIII, at 2). Petitioner has failed to show

how he was prejudiced by the omission of this information in the transcripts.

Finally, Petitioner's ninth claim asserts that his trial attorney was ineffective

for failing to preserve the above claims in the trial court. But as explained, none of

the alleged errors were sufficiently prejudicial to merit relief on appeal. Accordingly,

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Petitioner cannot demonstrate Strickland prejudice, and his appellate counsel was

therefore not ineffective for omitting an ineffective assistance of trial counsel claim

on these grounds.

Because none of the defaulted claims are "dead bang winners," or were

clearly stronger than the claims raised by counsel on appeal, Petitioner has failed to

establish cause for his procedural default. See McMeans v. Brigano, 228 F.3d 674,

682-83 (6th Cir. 2000). When cause has not been shown, the Court need not

consider whether actual prejudice has been demonstrated. See, e.g., Smith v.

Murray, 477 U.S. at 533.

Additionally, Petitioner has not established that a fundamental miscarriage

of justice has occurred. The miscarriage of justice exception requires a showing that

a constitutional violation probably resulted in the conviction of one who is actually

innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995). "'[A]ctual innocence' means

factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S.

614, 624 (1998). "To be credible, [a claim of actual innocence] requires petitioner to

support his allegations of constitutional error with new reliable evidence—whether

it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial." Schiup, 513 U.S. at 324.

Because petitioner has not presented any new reliable evidence that he is innocent

of these crimes, a miscarriage of justice will not occur if the Court declines to review

petitioner's remaining procedurally defaulted claims. Id.

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Petitioner is therefore not entitled to relief on his first through ninth claims

because they are procedurally barred from review.

E. Pending Motions

Petitioner has filed motions for an evidentiary hearing (Dkt. 8), to

supplement the record (Dkt. 9), and to expand the record. (Dkt. 10). The motions

seek to develop support for Petitioner's first and fifth claims regarding the

suppression of the recordings of his 911 calls. He wishes to expand the record to

determine whether the recordings of the 911 calls might still be retrieved, and to

further explore the facts surrounding their suppression.

In deciding whether to grant an evidentiary hearing, discovery, or expansion

of the record, a federal court must consider whether it would enable a habeas

petitioner to prove the petition's factual allegations, which, if true, would entitle

him to relief. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007). As discussed

above, even if it is assumed that the 911 recordings would reveal that Petitioner

was told by the operator to stay at the scene and wait for police to arrive, it would

not entitle him to any relief. This information at best would have undermined part

of the prosecutor's theory as to premeditation and deliberation.

The jury was aware that Petitioner made several 911 calls, and they

acquitted Petitioner of first-degree murder. In so doing, the jury rejected any

argument that Petitioner was circling in the area and waiting to strike, or else the

jury would have convicted Petitioner of the more serious offense. That is, even

accepting Petitioner's representations of what the recordings contain, there is no

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Case 4:15-cv-10685-TG B-APP ECF No. 11 filed 09/27/16 PagelD.2056 Page 27 of 28

reasonable probability that the result of his trial would have been more favorable

had they been presented at trial. They would not have altered the evidence

presented that while the unarmed victims were crossing the street and talking to

the bus driver, Petitioner suddenly accelerated his truck into both men. The

evidence showed that Petitioner struck the bus with enough force to send the driver

flying, and Petitioner dragged one of the victims for more than a block under

Petitioner's truck before dislodging the victim on a curb. Based on the evidence

presented at trial, even had the 911 recordings shown that Petitioner was

instructed to stay in the area, the remaining evidence was sufficient to permit the

jury to find him guilty of second-degree murder. Given that the jury ultimately

convicted Petitioner of second-degree murder, he has failed to show that there is

any reasonable probability that presenting the evidence Petitioner seeks would

have altered the outcome of the trial.

For these reasons, Petitioner's pending motions are denied because even if

Petitioner's factual allegations are proven to be true, he still would not be entitled

to habeas relief.

IV.CERTIFICATE OF APPEALABILITY

In order to appeal the Court's decision, Petitioner must obtain a certificate of

appealability. To obtain a certificate of appealability, a prisoner must make a

substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To

demonstrate this denial, the applicant is required to show that reasonable jurists

could debate whether the petition should have been resolved in a different manner,

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or that the issues presented were adequate to deserve encouragement to proceed

further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). A federal district court may

grant or deny a certificate of appealability when the court issues a ruling on the

habeas petition. Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002). Here,

jurists of reason would not debate whether the petition should have been resolved in

a different manner. The Court therefore denies a certificate of appealability. The

Court, however, grants permission to appeal in forma pauperis because an appeal of

this decision can be taken in good faith. 28 U.S.C. § 1915(a)(3).

V. CONCLUSION

Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a

writ of habeas corpus, 2) DENIES Petitioner's pending motions, 3) DENIES a

certificate of appealability, and 4) GRANTS permission to appeal in forma

pauperis.

[IISi4!iDi{1Jl Ii

Dated: September 27, 2016

s/Terrence G. Berg

TERRENCE G. BERG

UNITED STATES DISTRICT JUDGE

Certificate of Service

I hereby certify that this Order was electronically submitted on September

27, 2016, using the CM/ECF system; a copy of this Order was also mailed to the

Michigan Reformatory, 1342 W. Main St., Ionia, Michigan, 48846 directed to

Petitioner's attention.

s/A. Chubb

Case Manager

28

Additional material

is

from this f i l ing

available in the

Clerk's Office.