Petition for Writ of Certiorari — Marvin D. Noble, Petitioner v. Shane Jackson, Warden

19" 8036,-,

r

No.

IN THE

SUPREME COURT OF THE UNITED STATES

MZml hioh\i

— PETITIONER

(Your Name)

vs.

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

(JNM Mfjlfc hbtovf Cm\1. Zfltfm /usfmr of M chi fun*/

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

PJ\Mi\ A/ AhbK

(Your Name)

25°° S, ShMlAJM 6R,

(Address)

HizifhfS'i ml. h°ihhh

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

A#

\

<:

LIST OF PARTIES

[XI -AH parties appear in the caption of the case on the cover'page.

[ ] A11 parties do not appear in the caption of the case on the cover page. A list of

aH parties to the proceeding in the court whose judgment is the subject of this

petition is as foHows:

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

TABLE OF AUTHORITIES CITED

CASES

STATUTES AND RULES

OTHER

PAGE NUMBER

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

to

[ ] reported at

5 oh

[ ] has been designated for publication but is not yet reported; or,

M is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

5 or,

[ ] has been designated for publication but is not yet reported; or,

&C is unpublished.

[ ] For cases from state courts: ■

The opinion of the highest state court to review the merits appears at

Appendix_____ to the petition and is

[ 3 reported at

; or,

[ 3 has been designated for publication but is not yet reported; or,

is unpublished.

The opinion of the_

appears at Appendix

court

to the petition and is

[ 3 reported at

i or,

[ 3 has been designated for publication but is not yet reported; or,

[>i is unpublished.

1.

to

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was ______________________ _

No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:____________

, and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including______

(date) on

(date)

in Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

.3// In

[ ] A timely petition for rehearing was thereafter denied on the following date:

--------------------------------- , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No.__ A

The jurisdiction.of.this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

£

$

STATEMENT OF THE CASE

I

REASONS FOR GRANTING THE PETITION

CONCLUSION

The petition for a 'writ of certiorari should be granted.

Respectfully submitted,

Date:

J

■

No.

IN THE

SUPREME COURT OF THE UNITED STATES

/viohlfT

— PETITIONER

(Your Name)

VS.

5W AayKkI

— RESPONDENT(S)

PROOF OF SERVICE

I,

TflflftlVnN NoKW

—------------- , do swear or declare that on this date,

, 20

, as required bj Supreme Court Rule 29 I have

served the enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

and PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding

or that party’s counsel, and on every other person required to be served, by depositing

an envelope containing the above documents in the United States mail properly addressed

to each of them and with first-class postage prepaid, or by delivery to a third-party

commercial carrier for delivery within 3 calendar days.

The names and addresses of those served are as follows:

I declare under penalty of perjury that the foregoing is true and correct.

Executed on

,20__

(Signature)

CASE REVIEW

As an ever present peril for the criminal Justice System is

the conviction of an innocent person. Recognizing that peril, the

Supreme Court made clear in Harrington v Richter, 562 IJ . S. 06

(2011), habeas review by Federal Courts serves a crucial role in:

“Guarding against extreme malfunctions in the state criminal

justice system".

This case represents such an extreme malfunction,

this case

involves the murder of Mr. Washington, the deceased, in Detroit,

Michigan,

in 2013. Video footage was extracted depicting events

before or after the shooting occurred. Specifically,

a black

vehicle pulling curb side of the Rite-Aid Store. The second clip

depicts the unknown man walking through the pharmacy drive-thru

crossing paths with the victim. The third clip depicts the unno wn man fleeing up the alley.

It should he noteworthy to add

there is no video footage that captures the events of the actual

shooting

or the multiple people in the alley, or multiple people

hanging around or loitering around the abandoned house behind the

store .

Ms.Joanna Smith’s black Impala was parked in front of her

apartment, three (3) blo.cks sway from the crime scene. Without a

warrant ,

the same day of the shooting, Smith’s vehicle was towed

and processed by Detroit police, Lori Briggs, per order of Officer Rut|edge. DPD reorts did not find any forensic evidence that

would connect Smith or petitioner to the crime.

i.

,1

The following day of the shooting, August 6,

2013, Officer

Rutledge interviewed the only eye witness to the crime, M s .Martha

Porter , who described the shooter to be approxmitely 5'6 in

height and dark skin in complexion, tilhen shown a six (6) man

photo array, which included a photo of petitioner, Ms.

Porter,

again identified a dark skin in complexion blackman who she

thought to be or resemble the shooter. Petitioner was not identi­

fied from said photo array, detracting away from police suspicion .

It should be note worthy to add that Porter did not iden­

tify petitioner as the shooter at trial and she indicated he was

with someone on a bike when he fled.

In hope that something might turn up incriminating Smith or

that would connect petitioner to the crime, Officer Rutledge in­

dicated in an affidavit that Smith admitted involvemnt in the

homocide .

This sworn statement was later proven to be a lie dur-

ing petitioner's trial but the lie was utilized to secure Smith's

phone records in hope that something might turn up, again, no­

thing ever turned up.

The police indicated in its request for warrant, investigation report

and affidavit that video surveillance captures

Noble pulling out a gun and fatally shooting the victim,

and wit-

nesses positively identifying petitioner as the suspect. This

sworn statement was utilized to deceive a judge to sign a warrant

for pettioner's arrest where prohahle cause did not exist.

ii.

The police made a unilateral decision to exclude from it's

warrant request or affidavit that Smith was arrested for the in­

vestigation ofthe murder, and held in police custody for six (6)

days without being committed before a magistrate on felony char­

ges, and while in custody, Smith was repeatedly told by the po­

lice that petitioner was the man she dropped off at the store, or

shooter .

The police knew when it brought the criminal charges against

the petitioner, there was no physical evidence or eye-witness

account linking him to the crime, and that at the time of his

arrest he is listed as 5 ! 10 in height and medium lightbrown skin

in complexion, not 5'6 in height and darksin in complexion as

Porter indicated.

The main evidence used against petitioner was video survei­

llance. The prosecutor paraded multiple witnesses into the court­

room, who watched the video after the fact and provided lay opion

ion testimony identifying the unknown man in the video as peti­

tioner. All this occurred after the police introduced him as the

suspect. None of the witnesses who testified observed first hand

the crime, except, Porter, who,

again, testified at trial she did

not see the shooter in the courtroom.

During Smith's unlawful detainment she indicated to the p o lice under oath, petitioner did not havi a gun on the day of the

crime. Smith later reiterated these facts at the preliminary examination hearing, and denied seeing a gun at trial when the pro­

secutor framed his questions as to assume she'knew.

iii .

Ths homocide police tesified they found no evidence or shell

casings that would connect petitioner to the crime.

Expert witnesses and witnesses who had not observed first

hand the fatal shooting were paraded into the courtroom to give

there personal opinion as to who committed the crime and to talk

about the petitioner's character in a prejudical way to influence

the jury.

The petitioner is innocent and the identification of the

shooter by Porter and the fact that a warrant was built on cor­

ruption gives strong support to his claim.

U.S. 298,

In Schlup v Delo,

315 (1995), the Supreme Court held:

513

"that a credible

claim of actual innocence will permit a petitioner to have his

constitutional claims reviewed by a habeas review.

iv.

STATEMENT OF QUESTIONS PRESENTED

A.

MARVIN NOBLE IS ENTITLED TO A WRIT OF HABEAS CORPUS

BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS INSUF­

FICIENT UNDER THE DUE PROCESS CLAUSE, JACKSON V VIR­

GINIA, 443 U.S. 307 (1979), TO SUSTAIN MR. NOBLE'S

CONVICTION OF FIRST DEGREE MURDER, FELON IN POSSESSION

OF A FIREARM, FELONY FIREARM., AND CARRYING A CONCEALED

WEAPON.

B.

MARVIN NOBLE IS ENTITLED TO A WRIT OF HABEAS CORPUS

BECAUSE THE PROSECUTOR ATTACKED HIS GOOD CHARACTER

BY ELICITING BAD ACT TESTIMONY FROM A WITNESS DEPIC­

TING HIM AS A DRUG DEALER.

C.

MARVIN NOBLE IS ENTITLED TO HABEAS RELIEF, BECAUSE

HE WAS DENIED HIS SIXTH AMENDMENT RIGHT, WHEN TRIAL

COUNSEL FAILED TO OBJECT TO THE PROSECUTOR'S LEADING

A STATE WITNESS TO DEPICT PETITIONER AS A DRUG DEALER.

D.

MARVIN NOBLE IS ENTITLED TO A WRIT OF HABEAS CORPUS

BECAUSE HE WAS DENIED HIS SIXTH AMENDMENT RIGHT WHEN

TRIAL COUNSEL FAILED TO CROSS-EXAMINE PORTER REGARDING

THE SHOOTER'S DESCRIPTION, CAUSING AN INNOCENT MAN

TO BE INCARCERATED.

E.

MARVIN NOBLE IS ENTITLED TO HABEAS CORPUS RELIEF BE­

CAUSE, HE WAS DENIED HIS SIXTH AMENDMENT RIGHT WHEN

TRIAL COUNSEL, FAILED TO OBJECT TO THE LAY OPINION

TESTIMONY OF VARIOUS STATE WITNESSES REGARDING THE

IDENTITY OF INDIVIDUALS IN VIDEO SURVEILLANCE FOOTAGE.

F.

MARVIN NOBLE IS ENTITLED TO HABEAS RELIEF BECAUSE,

HE WAS DENIED HIS SIXTH AMENDMENT RIGHT WHEN TRIAL

COUNSEL FAILED TO INVESTIGATE AND DEVELOP A DEFENSE

BY OBTAINING THE ASSISTANCE OF AN EXPERT FIREARM EXAM­

INER.

G.

MARVIN NOBLE IS ENTITLED TO HABEAS RELIEF BECAUSE,

HE WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS

vi

WHEN APPELLATE COUNSEL FAILED TO CALL TRIAL COUNSEL

TO THREE POST CONVICTION HEARINGS HELD TO EXPLAIN

WHY HE FAILED TO INVESTIGATE AND MOVE FOR THE SUPRESSION OF THE FELONY CHARGES THAT WERE BROUGHT AGAINST

PETITIONER MALICIOUSLY, AND APPELLATE COUNSEL'S FAIL­

URE TO RAISE THE ISSUE ON DIRECT APPEAL, CAUSING AN

INNOCENT MAN TO BE INCARCERATED FOR A CRIME HE DID

NOT COMMIT.

H.

MARVIN NOBLE IS ENTITLED TO HABEAS RELIEF BECAUSE,

HE WAS DENIED HIS SIXTH AMENDMENT SIGHT WHEN APPELLATE

COUNSEL FAILED TO CALL TRIAL COUNSEL TO THREE POST

CONVICTION HEARINGS HELD TO EXPLAIN WHY HE FAILED

TO OBJECT TO VARIOUS STATE WITNESSES OFFERING AN OPIN­

ION INDICATING PETITIONER WAS GULITY.

I.

MARVIN NOBLE IS ENTITLED TO HABEAS RELIEF BECAUSE

HE WAS DENIED HIS SIXTH AMENDMENT RIGHT WHEN APPELLATE

COUNSEL FAILED TO MAKE AN OFFER OF PROOF TO ANY CLAIMS

RAISED ON DIRECT APPEAL.

vii

TARLE OF AUTHORITIES CITED

CASES

Ake v Oklahoma, 470 68 (1997)

p .1 3

Berger v United States, 295 US 78,88 (1935)

p.6

Broun v Illinois, 422 US 590

95 Set 2254 (1975)

p.1 7

Comb v Coyle, 205 F.3d 264,288 (6th cir. 2000)

Cooper v Souders,

837 F.2d 284,

p .1 0

p.4,17,24

(1998)

Donnelly v Christoford, 416 US 637,646 (1974)

p.5

Evitta v Lucy, 469 US 387,396 (1985)

p.9

Ex Parte Royall, 117 US 241,

p .1 0

(1 886)

i

Harrington v Ricther, 562 US 86 (2011)

Hinton v Alabama, 134 Set 1081, 188 L ed. 2d.

(2014)

p .1 4

Hirmuz v City of Madison Heights, 469 F.Supp.2d 466 (E.D.Mieh)plO

In Re Winship, 397 US 358 (1970)

p.5

Clack son v Virginia, 443 US 324

P.1,7

Kimmelson v Morrison, 477 US 365,384 (1986)

p .1 3

Neuman v Matrish, 492 F.Supp.

P.1

2d 721

(6th cir. 2007)

Old Chief v United States, 519 US 172 (1997)

p.3

Piaskouski v Bett, 256 F.3d 6887,693 (7th cir. 2001)

P.1

Schlup v Delo, 513 US 298,31 5

Simpson v Warren,

(1 995)

474 Fed.App.51

(6th cir. 2012)

Strickland v Washington, 466 US 688 (1984)

United States v Crams , 445 US 463,474 (1980)

Walker v Engle, 703 F.2d 959

Washington v Hoffauer,

(6th cir.cert. 464 US 951

228 F.3d 689,700 (6th cir. 2000)

i v , p . 11

p.7

p.13,17

p .1 0

(1963)p.24

p.5

People v fitley,

342 Mich 2989

(1974)

P-1

People v Bragdon,

142 Mich App 197

(1985)

p .1 9

People v Bullard,

2013 Mich App Lexis 24

p.11

People v Cutchell, 200 Mich App 346 (1993)

People v Fomby,

300 Mich App 46 (2013)

People v Hoffmeister, 159;

944 (1 975)

P•k

p.14,19

394 Mich 155 (1975) reh den 394 Mich

P •1

People v Johnson, 409 Mich 552 (1980)

P•7

People v Malbry,

p.9

78 Mich 538

People v Oliphant,

People v Yeoman,

(1967)

399 Mich 472 (1976)

P•5

218 Mich App 406 (1996)

p .1 0

STATUES AND RULES

p .1 B

MRE 701

OTHER

US Const.

Am VI,

XIV Const.

1963,

Art,1

sec 20.

p.9

CERTIORARY SHOULD BE GRANTED FOR THE FOLLOWING REASONS:

Reason 1.

In the instant case, without impermissibly stacking infer­

ences there was insufficient evidence for a rational trier of

fact to conclude that petitioner murdered the victim under the

Oackson v Virginia, 443 IJ . § ,

324 standard. Although a jury may

infer facts from other facts that established by inferences, each

link in the chain of inference must be sufficiently strong to

avoid a lapse into speculation. Newman v Metrish, 492 F.Supp. 2d

721, Lexis 43488 (6th cir.2007) quoting Piaskowski v Bett, 256

F.3d 687, 693 ( 7th cir. 2001 ).

The leap from inference to inference is irreconsible with

the requirement of proof of guilt beyound a reasonable doubt and

is impermissible.

People v Atley, 342 Mich 298 (1974). The chain

that the prosecutor attempted to forge fails in many places in

petitioner Noble’s case.

First, the lower courts relied on the medical examiner's

testimony indicating the victim's autopsy report shows he was

shot in the head at close range. However,

the brutal nature

alone does not justify an inference of premeditation and deliber­

ation of first degree murder. People v Hoffmeister, at 159;

394

Mich 155 (1975) reh den 394 Mich 944 (1975).

Second,

the lower courts ignored testimony from Smith indi­

cating it was her idea to go hang out at the house with her

friends where the victim was shot.

1 .

(TT3, 110: 18-19).

After

Smith told Noble where she was about to go, it was then that he

asked for a ride to the store. The state or lower couorts ignored

Smith's testimony indicating petitioner never had a gun on the

day of the crime. Smith testified petitioner never procurred a

gun or had a gun on his person or in Smith's vehicle when she

dropped him off at the store, or after the fatal shooting, when

she later picked him up.

(TT3, 179: 13-23/180: 1-3).

Smith's claim was first validated at the probable cause hear­

ing, when the prosecutor asked her if petitioner carried a gun

on the day of the crime, Smith indicated petitioner was not carrying

or concealing a gun on the day of the crime. When further

asked, how did she know with certainty, Smith indicated she

would know because the extended clip and the particular gun

possessed in the past was the caliber to carry a extended clip

and that is what petitioner always had. See appendix A •

It is clear that this line of questioning was unconstitu­

tional and had nothing to do with the crime that occurred. More­

over, Smith's testimony supports petitioner's claim of innocence,.

Also, Smith's testimony undercuts the proscutor's theory that

petitioner Noble was a felon in possession ,of a firearm, or

carried an unlicensed pistol, or procurred a weapon to effectu­

ate the crime of first degree murder.

the lower courts ignored testimony evidence from the homo-.1;

cide investigator, who indicated no shell casings associated with

a semi-auto matic weapon were recovered at the crime scene or

recovered period

(TT2, 210: 1-5), further proof of petitioner's

innocence.

2.

The trial record shams the witnesses paraded into the court­

room did not identify petitioner with a gun or observ first hand

the fatal shooting, with the exception of Porter, who identified

a darkskin in complexion blackman who she thought to be the shooter, from a six man photo array. See appendix 0 . Moreover,

Porter

did not identify petitioner as the shooter during trial, from the

multiple people in the alley,or multiple people loitering around

the house^where the victim was shot.

( T T 2 , 123: 11-17).

The trial record shows that the jury was emphatically told

petitioner was a dangerous person by his very nature,

and that

he's a felon who concealed a gun in the past and is the sort of

character who was likely to have fatally shot the victim. OldChief v United States, 519 US 172 (1997).

Third, aside from the prosecutor's assumption,

there was no

physical evidence connecting petitioner to the crime,further

proof of the prosecutor's leap in logic.

Fourth, The lower courts ignored the fact that the prosecutor

was arguing facts not supported by the trial record, when

it indicated Garza or Gallogoes witness petitioner shoot the

victim (TT4, 94: 1-2). When in fact, neither witness observed

the fatal shooting

. There testimony is limited to seating in

the pharmacy driv-thru and hearing a gunshot.The trial record

shows that both witnesses failed to identify petitioner at the

crime scene from a six man photo array. See appendixC .

8-9/79: 1 7-21 /86:

5-7),

(T T 2,

35-38, 45-46).

3.

(TT2, 78:

Neither witness testimony account of the events,

says any­

thing about what petitioner did in the alley just before the vic­

tim was shot. The trial record indicates both witnesses identi­

fied petitioner from a unconstitutional suggestive identification

in-court process,

(1) one year and (2) two months later, repeated

ly, invading the province of the jury by opining the petitioner

was guilty of being the shooter that cased out the area.

23:4),

(TT2,24 : 6) ,

(TT2,33:22)

(T T 3,

(TT2 , 26 : 13-19).

tiiho shot the vicdtimrn was an issue for the jury to deter­

mine, and because trial counsel failed to object to lay opinion

impermissible testimony, their testimony invaded the province of

the jury and impermissibly impunged fundamental fairnes$„

Cooper v Sowders,

v Fomby,

B37 F.2d 284, 1998 US App Lexis 501, People

300 Mich App 46 (2013).

The trial record indicates that after the fatal shooting

no witness who testified stuck around.

(TT 2 , 120:19). Thus, flight

could be the result of innocent people avoiding the line of fire,

departing out of fear or panic. People v Cutchall, 200 Mich App

346 (1993). The trial record shows the petitioner was isolated

by the prosecutor from the multiple people hanging around the

house or the crime scene, creating the illusion that if only the

petitioner and victim were alone behind the house, any reasonable

jury could believe petitioner was the shooter and fled from guilt.

Again, Smith and Porte's testimony under cuts the prosecu­

tor's theory that the vicdtim and petitioner were alone.

110: 5-8),

(TT2 , 115),

(TT2, 1 27: 1 7-20).

4.

(TT3,

Identifiaction Is an essential element in every criminal

prosecution and the prosecution failed to establish such element.

In Re Winship,

397 U.S. 358 (1 970), People v Oliphant, 399 Mich

472 (1976).

It should be note worthy to add that at the time of peti­

tioners arrest he is listed as 5*10 in height and mideum lightbrown skin in complexion. See appendix £ .

Fifth, the lower court placed strong emphasis on the tesimony of David Lee, indicating petitioner sold drugs to the vic­

tim in the past .

The proscutor argued a drug deal gone bad could cause there

to be friction that led to the victim's dealth.

(TT4, 98: 15-

19). Moreover, the lower courts ignored testimony from Lee indieating

he was not an eye-witness, never found out who shot the

victim, or that he had no personal knowledge about any disagreements (TT3, 65: 15-16), or bad blood between the victim and pe­

titioner regarding drugs that led to the murder.

(TT3, 71: 7-10).

The actions of the prosecutors in arguing assumptions, with

no, offer of proof amounted to a substantial error, because it is

more probable than not that the jury was mislead in a prejudical

way by attacking petitioner's character as a drug dealer, and

significantly impacted the jury's deliberation. Donnely c Christoford, 416 U.S. 637,646 (1974). Washington v Hofffiauer,

689,

700 (6th cir.2000) .

5.

228 F.3d

The affects of the prosecutor's action so infected the trial

by the attack on petitioner's character, making the resulting

conviction a denial of due process. Berger v United States,

U.S . 7 B ,

295

BB (1 935 ) .

The loaer court ignored the fact even the trial court observed

that the chain of inference, linking the victim's dealth

to an alleged drug sale, or drug meeting, or drug dealing relatio­

nship, was pure speculation and showed no threhald linking under­

ground rumblimtj'J'

from Lee to the instant crime. When the

trial court asked officer Erue, if he was aware that cell phone

records existed for the petitioner, the police said "yes", when

further asked,

if any calls were made "separate" or "apart" from

Smith's phone in connection with the murder,

the police said "no "

(T T 4,5 8: 1-2).

It should be noteworthy to add the lower courts ignored

testimony from Lee, who indicated the petitioner and the victim

were on friendly terms (TT3, 68: 18-20).

Sixth, the pathologist testified that the victim's toxi­

cology report revealed cocaine in his system.

(TT3,

28: 15).

The lower courts ignored the fact that the trial record is void

of any evidence as to the victims whereabouts when he obtained

and consumed cocaine or who he obtained it from,

(TT3, 29:11-

17). The trial record does show that petitioner was (isolated

by the prosecutor as the culprit, when, infact, Lee indicated

that the victim routinely purchased cocaine from a number of drug

dealers from the neighborhood.

(TT3,

6.

85: 7-9).

The prosecutor not only isolated petitioner Noble, but the

prosecutor's claim impermissibly linked a fairly innocent lab

report to the petitioner's reputation as a drug dealer in such

a manner that his guilt was implied by the attack on his charac­

ter itself. The prosecutor erred in attacking it because petiti­

oner never put his character in issue. Simpson v Darren, 474

Fed.App.51

(6th cir.2012) people v Johnson, 409 Mich 552 (1980).

Seventh, the lower courts failed to evaluate mere presence,

a factfinder must distinguish, based upon the totality ofthe

circumstances between one who is present at the scene and one who

is present with criminal intent. Long v Stovall, 450 F.Supp. 2d af

754 ( 2006) . .

The trial record shows that there was no forensic evedces,

no eye witnesses acounts^r physical evidence that petitioner

was present with criminal intent. Here presence even with the

knowledge that an offense is about to be committed or is being

committed is not enough to make a person an aider or abettor or

a principal in the murder.

No evidence was introduced that the petitioner acted in

pre-concert to - efactuate the crime of murder in the first degree.

Thus, the prosecutor's arguments are foundated upon a pyramid

full of speculations, gaps, and inadmissible testimonies. A

strong suspicioin that petitioner was involved in crimnal acti­

vity is no substitute for proof of guilt beyound a reasonable

doubt.

Jackson v Virginia, 443 U.S. 307,319 (1979).

7.

Reason 2,

Petitioner argues his appellate counsel's failure to raise

his ineffective assistance of trial counsel claim, by failing

to investigate a malicious prosecution constituted ineffective

assistance of coounsel. Petitioner also argues appellate counsel

failed to challenge the trial court's decision to grant or deny

petitioner a new trial, after petitioner made a preliminary show­

ing that a warrant for his arrest was procured by fraud.

In the instant case, Officer Rutledge signed a affadavit and

Request for a warrant

for petitioner's arrest.

(TT3,

202:5-6).

The request for a warrant indicates video surveillance captures

Noble

pulling

out

a

gun

and

killing

the

victim,

Mr . Washington.

See AppendixE. Moreover, this information turned out to be a lie.

Second, Officer Rutledge signed a affidavit stating Smith

was brought in the Detroit Homocide Section to be interviewed,

and during the initial interview, and the ones that followed she

confirmed that on August 5, 2013, she drove petitioner to the

area of Springwell and l/ernor and dropped him off. See Appendix-£

This

information

turned

out

to

the following day of August 8,

be

a

lie.

See

AppendixF.

And on

2013 smith told the police she

dropped off a really short darkskin man with rotten teeth, by the

name of Dee or Tee. See Appendix*?!.

Third,

police

documents

show

that

it

wasn't

until

after

Smith was unlawfully arrested for the investigation of the murder

See Appendix l-|. , and was detained for (6) six days by the police,

8.

(TT3,164:1), without being committed before a judge on felony

charges, repeatedly interrogated about and told Noble was the

killer by the police,

and told she faced life in prison if she

did not place petitioner in her car or at the scene, that she

caved in.

Fourth, Officer Rultedge indicated in his affidavit that

Smith was shown surveillance of the shooting, when, in fact,

there is no video footage of the shooting, and it was the police

who introduced Noble as the suspect to witnesses who did not observ first hand the fatal shooting.

Based on these facts, petitioner argues trial counsel per­

formance worked at a disadvantage under Strickland v Washington,

466 U.S. 6BB (19B4) standard, and that he was denied effective

assistance of counsel on appeal by right from appellate counsel.

Evitts v Lucy

469 U.S. 387,396 (1985), US Const, Am VI, XIV:

Const.1963, a r t. 1

sec.20, People v Malbry, #78 Mich 53B (1967)

At a post motion hearing (T2,17-22), dated: 10/30/15), peti­

tioner informed the trial court that he would need a Franks Hear ing^and the court informed petitioner he would be allowed to pre­

sent his case that would support such a hearing. During the fol­

lowing motion hearing held with the trial court the petitioner

made more than a preliminary showing that his Fourth Amendment

rights were violated as a result of a malicious prosecution, de­

spite

no

evientiary

hearing

was

explain his in-actions.

5.

held

to

have

trial

counsel

When

the lamer

courts

affirmed petitioner's

conviction,

all

courts indicated that an illegal arrest, without more, has never

been viewed as a bar to subsequent prosecution, nor a as a de­

fense to

a valid convicdtion.

The courts further indicated Noble

is not a suppressible fruit, citing United States v Crews, 445

U.S. 463,474 (1980).

Unlike "Crews" petitioner's case is distingushable, he

argues that the in-court suggestive identification was the pro­

duct of illegal police activity. Noble

*s identification was not

known as a suspect (unlike Crews) before police misconduct and

his presence in-court was indeed traceable to the Fourth Amend­

ment violation.

It should be noteworthy to add that petitioner has never

argued he is a supressible fruit. Petitioner argument is that

prejudice is presumed because lies were abridge in violation of

petitioner's constitutional procedural right, Ex Parte Royall,

117 U.S. 241

(1886), Hirmuz v City of Madison Heights, 469 F.Supp

2d 466 (E.D.Mich.2007) not to have false information created in

police reports or affidavits to detain petitioner or to build

a case against him were probable cause never existed.

In Brown v Illinois

at5"9o an arrest for a investigation of

a murder amounts to an illegal and unconstitutional detainement.

Again, Smith's statements were on the temporal extremes in rela­

tion to the illegal arrest and was obtained immediately after

being pursued and arrested by six police, prior to that Smith

10.

initially described someone else or identified someone else as

the person she dropped off at the store. See Appendix<3i. Thus,

petitioner has standing to challenge Smith's testimony. People v

Bullard, 2013, Mich App Lexis 24, citing People v Yeoman, 218

Mich App 406,

(1956).

Police documents show that The Duvalls contacted the police

to inform them the man name Kenny was the neighborhood suspect,

these documents further show the Duvalls independent recollection

from Kenny shifted to Noble from police misconduct.

Police

documents

also

show

the

police

introduced

See Appendix X.

petitioner

as

the suspect to David Lee, who watched a video after the fact and

assumed the man in the video shown exiting a black vehicle to be

petitioner on the asumption the vehicle looked like smith’s and

after being interviewed soley about petitioner, as police dis­

played a single photo of Noble to Lee. See AppendixJ .

Petitioner's claim of innocence also arises as a context

within this court should view constitutional errors that alleges

occurred at trial. Unlike and innocence claim under Herrera v

Collins ,

(claims made with the assumption of an error free trial)

Under Schlup v Delo,

513 US 248 (1995) where the claims of inno­

cence is made in conjunction with allegations of constitutional

error , the conviction may not be entitled to the same validity.

Whereas here, the evidence of innocence is strong

must be allowed a gateway to argue the merits.

11 .

petitioner

Reason 3 .

Petitioner was denied his Sixth Amendment right to counsel

when trial counsel failed to consult with an firearm expert, and

request the funding of such expert to challenge the states case

to aid the jury in understanding the evidence.

Prior to petitioner's trial, he was represented by trial

counsel Larry Polk, During the pre-trial stages, counsel filed

a Motion For Remand back to the Magistrate court.

Specifically, the issue was the victim's medical records

raises a material issue as to the identity of the shooter by

inferences suggesting the shooter is left handed and short in

height. Whereas, the petitioner is right handed and stands at

least 5 1 10 in height. Moreover, petitioner never disputed the

cause and manner of dealth, but argues that he was incorrectly

identified as the shooter. Subsequently,

The Motion to Remand.

the trial court granted

See Appendix K .

At the remand hearing Dr. Hudson testified he could not de­

termine whether the shooter was right or left handed. See (Appen-

dix L . ( P . E . on remand 24:10-13). At no time after the Remand hearing

did counsel Polk consult with a firearm examiner to inves-

stigate options in confronting the prosecution's proof by preparing

counsel to cross-examine the prosecutions expert or by

providing rebuttal testimony or by indicating how the requested

expert would be useful.

12.

On August 21, 2014, William Winters was appointed to repre­

sent petitioner, two weeks before trial.

During final conference

hearings, trial counsel indicated he was unaware that the court

received a letter from petitioner seeking assistance from a fire­

arm examiner, but that all evidence needed to develope a defense

to aid the jury in understanding the victim's gunshot infliction

wound, as it relates to the identity of the shooter, would be

brought threw his respesentation. See Appendix-M, Final conference

Ti, 4, 23-25).

During petitioner's trial, Dr. Hudson testified that he had

had seen hundreds of site imprints, but never saw a four (4)

O'clock imprint.

(TT3,

35:20-24). He also indicated he was not a

expert in firearms or ballistics, therefore, he could not deter­

mine whether the shooter was right or left handed, short or tall

in height, when asked.

(IT 3 , 40;3-6) , (TT3, 1 7 : 20 - 21 ) , ( TT3,5 3 :1 - 8 )

Trial counsel did not request from the court, that a inde­

pendant expert in firearms be appointed. As a result no evalua­

tion was conducted, as a result trial counsel denied petitioner

his opportunity to present a defense.. Counsel's conduct was

therefore ineffective Under Strickland v Washington, 466 US at

690. Kimmelman v Morrison

477 U.S.

365, 384 (1 386) .

An indigent petitioner who needs the services of an expert

witness to safely proceed to trial, has the right to the states

assistance in paying for that witness. Ake v Oklahoma, 470 US

6B (1 997) .

13.

Conclusivley,

the court held in Hinton v Alabama,

134 S ct 10B1, 1B8 L. sd. 2d 1

(2014)

571

US

"That it is unreasonable

for an attorney to fail to seek all available funding for a ne cessary expert witness." Therefore, it is more important than

ever that defense counsel seek adequate funding for expert assis

tance in cases involving indigent defendants,

failure to do so

violates defendants rights to effective assistance of counsel.

Reason 4 .

Several witnesses offered an opinion that the petitioner

was guilty of murder. Specifically, Gallogoes, repeatedly indi­

cated petitioner was the shooter.

(TT,23:4),

(TT2,24:6),

26:16),

(TT2,33:22 ),

(TT2,55:7),

(TT2,37:19),

61 : 20) ,

(TT3,141 : 20-21 ) . Officer Rutledge implied petitioner's

guilt,

(TT 3 ,

(TT2,34:15),

210:11-15),

as did Officer Rrue,

(TT2,

(TT2,

(TT4,65 : 5 - 23), In

addition, the prosecutor elicited testimony from David Lee concerning his "reliability" about past drug transactions between

the petitioner and the deceased, thereby, bolstering his credibility.

(TT3,69:71 -73) .

A witness cannot express an opinion on the petitioner's

guilt or innocence of the charged offense. People v Fomby,

Mich App 46

300

53 (2013), quoting People v Rragdon, 142 Mich App

197 (1905), and that is exatcly what the state witnesses did in

the instant case.

14.

In the case before this Honorable Court, when the prosecu­

tor asked Gallogoes to make an in-court identification of the

man she saw walk in the alley,

tioner as

Gallagoes refered to the peti­

"the shooter" when she pointed at him.

Secondly, Officer Rutledge testified that the two men who

matched the height,

skin complexion, dress attire, and were seen

loitering aroundSmith's vehicle after the crime, were innocent,

but that he established evidence that petitioner was the culprit

Third, Officer Brue , testified the pattern in the calls

between Smith and petitioner wer "abnorman" and indicated "cri­

minal activity".

Fourth, David Lee testified that petitioner sold drugs to

the victim or deceased in the past.

Petitioner now argues that officer Rutledge testimony inva­

ded the province of the jury because his opinion suggest to the

jury the innocence of others and the guilt of the petitioner.

Next, Officer Brue testimony suggest the guilt of the pe­

titioner because, outside his testimony regarding cell tower

signals identifying a geographical location through technology,

there was nothing scientific,

technical, or specialized abouot

his particular opinion indicating the calls between Smith and

the petitioner indicated criminal activity.

It should be note worthy to add that, the police lied under

oath regarding the pattern of call, when,

15.

A.',

in fact, the pattern

of calls indicate,

in a nutshell that when Smith met the peti­

tioner on th month of May of 2013, they pattern of calls are

numerous or consistent with the amount of calls on the day of

the fatal shooting, according to Smith's phone records.

Finally, Lee's testimony about what he alledgely observed

in the past, was never proven to be a link or relevant to the

instant case, because as Lee indicated he was not an eye-witness

to the crime, and did not have personal knowledge about any dis­

agreements regarding drug dealing between petitioner and vic­

tim that led to the fatal shooting.

(TT3,71 : 7-10) .

The testimony of the witnesses did not aid the jury in un­

derstanding any evidence, what it did was give an insider's

opinion on who committed the crime,

something that would have

never happened had trial counsel objected.

If counsel had objected,

there is a reasonable probability

that the outcome of the trial would have been different, be­

cause the trial court would have likely sustained the objection,

which means the jury would have considered the impermissible

lay opinion offered.

The jury would have had to make itw own decision and it is

reasonably prbable that it would not have concluded that peti­

tioner was guilty, considering no physical evidence or eye wit­

ness accounts, and no conclusive motive was established in the

prosecutors attempt to establish one.

16.

r

In Cooper v Sawders,

8 37 F .2d 284 (1998), the couort held

the officer’s testimony impermissibly impunged fundamental fairness because it offered and opinion on petitioner's guilt or innonce . The court held that petitioner

uas denied a fair trial

when the trial court allowed a police informant to

answer ques­

tion concerning the snitch's "reliability" in other

cases there­

by bolstering his credibility because the testimonoy about accept

ing responsibility for the arrest and conviction of other people

was not relevant and therefore it was inadmissible.

Appellate counsel's failure to call trial counsel to any of

the post motion hearings or his failure to seek the Cinther hear­

ing to have trial counsel explain his in-actions, constituted

negligence not strategy. Petitioner argues that the relevant

questions is not whether counsel s choices were strategic, but

whether they were reasonable,

A purportedly strategic, but whe-

ther they were reasonble. A purportedly strategic decision is not

objectively reasonable when the attorney has failed to investi­

gate his options and make a reasonable choice, between them.

Strickland 466 U.S. at 690, Comb v Coyle,

(6th cir. 2000) .

1 7.

205 FI.3d 264, 286

Reason 5.

Several witnesses testified to reviewing video surveillance

footage,

from the area surrounding the scene of the crime, and to

identifying petitioner and the deceased as the people in the

video. Christopher Duval, testified that he identified the pair

from video footage (TT2, 176-189), as did Stacie Duvall ( T T 2 , 190

195), David Lee (TT 3,

66-68 ,

94), and Joanna Smith (TT3, 1 34-1 37)

Neither of these witnesses were at the scene while the video's

were being recorded and thus, did not observe firsthand, the

events depicted in them.

Based on these facts, petitioner argues that these witnesses

provided lay opinion testimony regarding the people in the video

footage, and that trial counsel was ineffective for failing to

object to the admission of their testimony on the basis of such.

Michigan Rules of Evidence (MRE) 701

permits the admission

as provided:

If the witness is not testifying as an expert, the

witness testimony in the form of opinions or inference

which are (a) rationally based on the perception

of the witness and (b) helpful to a clear understanding

of the witness testimony or the determination of a

fact in issue.

Christopher and Stacie Duvall, David Lee, and Joanna Smith

all identified individuals depicted in video surveilance footage

as petitioner and deceased, and the purpose was to establish that

petitioner was the person that went behind the Rite-Aid Store

with the deceased, moments before the shooting and that peti­

tioner was the person running through the alley moments later.

18.

Neither of these witnesses testimony was rationally based on per­

ception because, as stated, neither of them were at the scene

while the video footage was being recorded, thus did not observe

firsthand the events depicted in the video.

Instead,

they all watched the video after the fact, and on

the basis of what they saw in the video, provided their opinion

regarding the identity of individuals in it. Their testimony was

in no way helpful to clear a understanding of any other witnesses

testimony or any fact at issue, because, again, the only fact at

issue was the identity of people in the video and that should

have been determined by the jury.

Identification was the central issue in this case and

should have been decided by the jury. However,

it was the wit­

nesses conclusions and opinions of the identity of the individual

in the video surveillance footage, and that was a question for

the jury to decide.

A witness cannot express an opinion on petitioner's guilt or

innocence of the charged offense. People v Fomby, 300 Mich App 46

53 (2013)

(quoting People v Bragdon, 142 Mich App 157, 199 (1585)

and the witnesses in the instant case, did just that when they

identified petitioner as the person in the video.

Neither of the witnesses were in any better position than

the jury to determine if it was actually petitioner that was in

the video, so their testimony was impermissibly lay opinion tes­

timony and counsel was deficient for failing to object to it ad­

mission .

19.

If counsel had object, there is a reasonable probability

that the outcome of the trial would have been different because

the trial court would have likely sustained the objection, which

means that the witnesses would not have been allowed to give

their opinion of petitioner being the person in the video.

The jury would have had to make that determination on its

own and its reasonably probable that it would not have concluded

that petitioner was the person in the video, considering that

people who claimed to have known him for years, and to have hung

out with him everyday, had a hard time trying to determine whe­

ther it was him or not. If these witnesses could not make a

clear determination, its reasonably doubtful that the jury would

have been able to.

The video surveillance footage is the only evidence linking

petitioner to this offense, as there are no eye-witness accounts,

no physical evidence, and no forensic evidence. The prosecutor

will probably argue that the identification testimony of Silvia

Galloes and Ester Garza linked petitioner to the murder, but this

argument must fail because both these witnesses claims regarding

identification amounted total non-sense, so it is highly unlikely

that any reasonable juror afforded it any weight, Neither Garza

or Gallogoes identified petitioner in a photo line up a week

after the murder .

(see Garza at TT2,

Gallogoes at TT2 ,

35-38, 45-46 and appendix£.), yet they both

20 .

77-79) and appendixG.)

(see

positively identified him in court over a year and two (2) months

later .

(Garza at TT2 , 80;

7-13),

(Gallagoes at TT2,

37: 14-25).

this does not make any sense, so a reasonable juror would have

disregarded it.

Christopher Duvall claimed he knew petitioner for at least

two (2) years, prior to the incident in question (appendix-1 ) . He

uas only able to identify the boots that the person in the video

wore as being similar to a pair that he had seen petitioner

wear in the past.

(TT2, 176-189); see also relevant prtions of

Christopher Duvall’s preliminary examination testimony,

(P.E.

5-7) , appendix /vj .

David Lee told the police that he hung out with petiti oner

everyday for four (4) to five (5)_ months straight and he could

only assume that petitioner was the person in the video,

(appen­

dix (T •)

In short ,

there can be no reasonable explanation for trial

counsel's failure to object to the impermissible lay witnesses

testimony, because there's a reasonable probability that the ob­

jection would have changed the outcome of the trial and would

have been different. Counsel was therefore ineffective.

21 .

Reason 6 .

Appellate counsel raise several aruments in his mo ition for

for a new trial, fill claims went before the Trial Court and the

Michigan Court of Appeals.

There were no appendixes, no references to any particular

page number from the trial record introduced as an offer of proof

no affidavits were introduced as a offer of proof and no eviden­

tiary hearings were held to expand the record to support any argument. Instead,

appellate counsel merely cited a numerous amount

of case authorities,

no facts from the trial record were included.

Before the Michigan Court of Appeals affirmed petitioner's

conviction,

he made efforts to have appellate counsel's counduct

corrected or dealt with.

(Motion Hearing 2,3,4,5,

dated: 12/1/15)

Petitioner contacted MfiflCS, Attoryner Grievance Commission, the

Trial Court and Chief Justice.

(Post Motion Transcript 2,4,8-22,

5: 1-4) none of these agencies provided a solution for peti­

tioner's plea for guidance.

It was after petitioner grieved his

appellate counsel's conduct, that the prosecutor indicated at

page nine (5) of their brief

that appellate counsel failed to

make an of'sr of proof to support each claim and merely cites

numerous case authorities.

the prosecutor's claim,

It should be noteworthy to add, that

in its rebuttal brief,

is identical to

petitioner's claim of ineffective assistance of counsel.

Based upon these facts, appellate counsel performance

worked at a disadvantage on petitioner's appeal by right.

22 .

Again, appellate counsel acknowledge that a record needed to

be developed to suport all claims before the trial court.

Motion Hearing T1,

(Post

2:17-22), Moreover, no record was developed.

What the post motion record shows is appellate counsel violated

two (2) court orders to review with petitioner the miscellaneous

homocide file, trial record,

and video footage, for the purpose

of showing the trial court that all evidence detracted away from

the police suspicion that petitioner was guilty and that his

due process rights were violated when the police falsified re port and lied under oath to establish probable cause to arrest

the petitioner. Also,

for the purpose of showing the court how

the prosecutor mischaracterized video evidence with the knowledge

the plies lied about what it depicts, to have petitioner arrested

and to review the trial record to inspect strong issues on which

trial counsel was deficient.

Appellate counsel informed the trial court that he tried to

withdraw as counsel when the client and attorney reltionship d e tireorated .

( post motion hearing T4, 29:15-25,31), yet the trial

court and Chief Justice would not allow counsel to withdraw.

Because appellate counsel failed to file petitioner's s u pplemental brief to the Michigan court of Appeals that was filed

with the trial court, and because appellate counsel failed to

call trial counsel to any hearing to explain his in-actions, and

because he violated two court ordersj counsel!

he abandoned petitioner at a critical stage.

23 .

conduct clearly

All cumulative errors raised in this case committed by trial

counsel, appellate counsel, the police, and lower courts was so

fundamentally unfair that petitioner was deprived of his prosedural due process rights, requiring reversal of his conviction.

Coop^er v Sawders,

R37 F , 3 d 284 (1988) quoting Walker v Engle,

703 F.2d 959 (6th cir. cert. 464 U.S. 951

(1983).

Mr. Noble has exhausted all state remedies as to the issues

presented herein . He exhausted his state court remedies by taking

the following steps:

A. On direct appeal,

relief on December 15,

the Michigan Court of Appeals denied

2016, under file No. 324885, in an unpu­

blished opinion captioned People v Marvin Dwayne Noble. See Ap­

pend! xj). The Michigan Supreme Court denied leave to appeal on

3une 27, 2017. People v Marvin Dwayne Noble

No. 155178 See Ap-

pe nd i x P.

3. On August 1,

2017, Mr. Noble properly filed a Motion for

Relief from Oudgement pursuant to MCR 6.500 in the Wayne County

Michigan Circuit Court, which was denied on October 19, 2017, People v Marvin Dwayne Noble

Wayne County Circuit Court, No. 14-

QQ0744-01 FC. See Appendix/^.

C. On December 7,

2017, Mr. Noble filed an Application seek­

ing Leave to Appeal to the Michigan Court of Appeals. The Appli­

cation was denied on Febuary 9,

Noble,

C.O.A. file No. 34145.

2018, People v Marvin Dwayne

5§fe • 3ppendix_ft.

24 .

D . On March 1 ,

201R,

Michigan Supreme Court,

Mr .

Noble filed an Application to the

that Application was denied on October 12

201 8 ,

People v. Marvin Duiayne Moble, H.S.C. file No. 157277 and

{1R) .

See appendixSE. Mr. Noble filed a Petition for Writ of Habeas Corpus in

the Eastern District Court of Michig an ,

the Habeas Corpus was de~

nied on August 22, 2019. See appenriixT.

The United States Court

of Appeals For The Sixth Circuit denied petioner s request to

proceed with a Certificate of Appealibilty. See appendix LI.

(Dated:

January 17,

2020).

25 .