Petition for Writ of Certiorari — Steven B. Anderson, Petitioner v. Thomas Winn, Warden

Supreme Court briefMay 26, 2020

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No. 19-1616

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STEVEN B. ANDERSON,

Petitioner-Appellant,

THOMAS WINN,

Respondent-Appellee.

)

FILED

Jan 06, 2020

DEBORAH S. HUNT, Clerk

ORDER

Before: MOORE, SUTTON, and NALBANDIAN, Circuit Judges.

Steven. B. Anderson petitions for rehearing en banc of this court’s order entered on

October 31,2019, denying his application for a certificate of appealability. The petition was initially

referred to this panel, on which the original deciding judge does not sit. After review of the petition,

this panel issued ah order announcing its conclusion that the original application was properly

denied. The petition was then circulated to all active members of the court, none of whom

requested a vote on the suggestion for an en banc rehearing. Pursuant to established court

procedures, the panel now denies the petition for rehearing en banc.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

No. 19-1636

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STEVEN B. ANDERSON,

Petitioner-Appellant,

THOMAS WINN,

Respondent-Appellee.

)

FILED

Oct 31, 2019

DEBORAH S. HUNT, Clerk

ORDER

Steven B. Anderson, a Michigan prisoner proceeding pro se, appeals from the district

court’s order denying his 28 U.S.C. § 2254 habeas corpus petition.

Anderson’s timely notice of

appeal is construed as an application for a certificate of appealability (“COA”). See Fed. R. App

P. 22(b).

In 2012, a Michigan jury, convicted Anderson of first-degree premediated murder, in

violation of Michigan Compiled Laws § 750.316; assault with

intent to commit murder, in

violation of section 750.83; felon in possession of a firearm, in violation of section 750.224f; and

three counts of possession of a firearm during the commission of a felony (“felony-firearm”), in

violation of section 750.227b. See People v. Anderson, No. 313025, 2014 WL 2931820 (Mich.

Ct. App. June 26, 2014) (per curiam) (unpublished). These convictions arose out of the murder of

Romney Hunter and the shooting injury of Troy Whitfield, who were

Victims of an ambush by

Anderson, Robert Wright, and Jaquan Henderson. Wright had been assaulted a few weeks earlier

in an attack that was perpetrated by Hunter, Whitfield, and others.

Id. at *1. In a separate trial,

Henderson was convicted of second-degree murder, and the evidence at Anderson’s trial showed

that, in committing the offenses, Wright had fired a .44 caliber handgun, Henderson had fired a

.380 caliber weapon, and that Anderson had discharged a shotgun.

No. 19-1616

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As a third-offense habitual offender, Anderson was sentenced to life imprisonment without

parole for the murder conviction, twenty-five to fifty years for the assault conviction, fifty-seven

months to ten years for the felon-in -possession conviction, and two years for each of the felony

firearm convictions. Id. The Michigan Court of Appeals affirmed,

id., and the state supreme court

denied leave to appeal, People v. Anderson. 858 N.W.2d 454 (Mich. 2015) (mem.). Anderson

filed a motion for relief from judgment, which the trial court denied,

finding that his claims had

either been rejected on direct appeal or that they were

procedurally defaulted. The state appellate

court and state supreme court denied leave to appeal. People v. Anderson, 908 N. W.2d 887 (M

ich.

2018) (mem.).

In April 2018, Anderson filed his § 2254 habeas petition, raising ten gr

ounds: (1) he was

denied due process when the

prosecutor presented false and perjured testimony at his trial,

specifically testimony by Henderson; (2) trial counsel performed ineffectively by failing to present

a defense and to further investigate the use

of certain witnesses; (3) the trial court erred by

admitting hearsay testimony and allowing incomplete jury instructions; (4) the trial court erred by

failing to correct the prosecutor’s allegedly prejudicial actions; (5) the prosecutor perpetrated fraud

on the court; (6) the prosecutor committed misconduct by improperly withholding exculpatory

evidence; (7) trial counsel performed ineffectively by failing to object to the allegedly defective

complaint; (8) he was denied his right to equal protection when the trial court bound him

over on

the murder charge; (9) the evidence was insufficient to support his conviction; and (10) appellate

counsel performed ineffectively. The district court denied the petition, finding that his claims were

either without merit or barred by procedural default. The court also denied

a COA.

A COA may issue when an “applicant has made a substantial showing of the denial of a

constitutional right.”

28 U.S.C. § 2253(c)(2).

To satisfy this standard,

a petitioner must

demonstrate “that jurists of reason could disagree with the district court’s resolution

of his

constitutional claims or that jurists could conclude the i

issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Habeas

corpus relief may be granted on claims that were adjudicated in state court only if the state-court

No. 19-1616

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adjudication was contrary to, or involved an unreasonable application of, clearly established

federal law, or the state-court adjudication “was based on an unreasonable determination of the

facts.” 28 U.S.C. § 2254(d). The relevant question is whether the district

court’s application of

28 U.S.C. § 2254(d) to those claims is debatable by jurists of reason. Miller-El, 537 U.S. at 33637. When the district court denies a habeas petitio n on procedural grounds without reaching the

prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least,

that “jurists of reason would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and 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)

Prosecutorial Misconduct Based on Henderson’s Testimony tClaim Onpt

Anderson argued that prosecution engaged in misconduct by presenting Henderson’s

testimony knowing that it was false. “The knowing use of perjured testimony, including the failure

to correct false testimony, constitutes a denial of due process if there is any reasonable likelihood

that the false testimony could have affected the judgment of the jury.” Foley v. Parker, 488 F.3d

377, 391-92 (6th Cir. 2007) (citing Napue v. Illinois, 360 U.S. 264, 272 (1959)). “This includes

the use of testimony, whether elicited or left uncorrected, that the prosecutor knows or should

know is false.” Id. at 392 (citing Giglio v. United States, 405 U.S. 150, 153-54 (1972)).

At both trials, Henderson testified that Anderson had a shotgun and threatened him with it,

Anderson forced him to fire a .380 caliber weapon, Anderson fired first, Henderson only fired into

the air, and their plan was to rob the victim and to shoot only if the victim attempted to

use a gun.

Anderson, 2014 WL 2931820, at *2. At Henderson’s trial, the prosecutor had accused Henderson

of lying about his belief that only a beating would take place, about Anderson forcing him to fire

his gun, and about shooting only into the air rather than targeting anyone.

As the state court explained on Anderson’s direct appeal, the prosecutor “never asserted

[at Henderson’s trial] that Henderson was lying about Anderson being involved [in] and

participating in the offense, about Anderson providing assistance in carrying out the crimes, about

Anderson wielding a shotgun, and about Anderson first discharging the shotgun.” Id. The state

No. 19-1616

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appellate court also pointed out that, at Anderson’s trial, the prosecutor recognized in court that

Henderson was not clean” and had been involved in the offenses, leaving the issue of Henderson’s

credibility to the jury. The state appellate court concluded that no prosecutorial misconduct took

place because the prosecution’s theory and arguments at Anderson’s trial

were unrelated to

Henderson’s statements that the prosecutor had previously questioned at Henderson’s trial, so that

any

tainted” testimony was “not material to Anderson’s guilt, especially considering the

overwhelming evidence of Anderson’s guilt.” Id.

The district court concluded that the state appellate court’s decision was not an

unreasonable application of clearly established law. Moreover, the district court referred to the

other evidence supporting Anderson’s conviction, including the testimony of multiple witnesses

regarding Anderson’s involvement in the crime, the fact that he dropped his cell phone at the

scene

of the shooting and admitted this to certain witnesses, and the fact that the shotgun he used

was

found in the river where he had instructed someone to throw it and where he informed police that

it could be found. Reasonable jurists would not debate the district court’s analysis and resolution

of this prosecutorial misconduct claim.

Ineffective Assistance of Trial Counsel tClaim Two)

Anderson argued that his counsel performed ineffectively by failing to call certain

witnesses to testify that the victims may have had guns, to call an expert ballistics witness to testify

about the bullet holes found in the victims’ clothing, and to impeach one prosecution witness.

Ineffective-assistance claims are reviewed under a two-part test requiring a defendant to show that

counsel’s performance was deficient and that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

On direct appeal, the state court noted that Anderson relied “solely on his own unsworn

affidavit in support of this argument, without describing how the additional witnesses would have

advanced his case or counter the prosecution’s overwhelming evidence “that the victims

were

effectively ambushed, not that Anderson .. . fired in self-defense.” Anderson, 2014 WL 2931820,

at *4. The state appellate court also rejected Anderson’s arguments that defense counsel failed to

No. 19-1616

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investigate the possibility of calling a firearms expert, that such an expert would have been useful,

and that he was prejudiced without such an expert at trial. Id.

Applying Strickland, the district court concluded that Anderson could

not show prejudice

because the result would have been the same in light of the evidence supporting Anderson’s guilt.

See 466 U-S‘ at 694‘ The district court highlighted Anderson’s “damning admissions to multiple

witnesses following the incident,” Anderson’s “presence at the scene .

. . corroborated by his

dropping his cell phone” there, and the fact that Anderson’s “shotgun was found in the river where

he directed it to be discarded.” Reasonable jurists would not debate the district court’s rejection

of this ineffective-assistance claim.

Procedurally Defaulted Claims

The district court determined that Anderson’s remaining claims were procedurally

defaulted. In so finding, the district court referred to the Michigan trial court’s decision denying

his post-conviction motion and, citing Michigan Court Rule 6.508(D)(3), and concluded that

Anderson had defaulted the claims by failing to present them on direct appeal. In its decision

direct appeal, the state appellate court in fact addressed some of these claims, which Anderson had

presented in a “Standard 4” pro se supplemental brief, but determined that Anderson had failed to

present them properly according to Michigan Court Rule 7.212(C)(5). Anderson, 2014 WL

2931820, at *5.

A habeas petitioner procedurally defaults a federal claim in state court when: “(1) the

petitioner fails to comply with a state procedural rule; (2) the state courts enforce the rule; (3) the

state procedural rule is an adequate and independent state ground for denying review of a federal

constitutional claim; and (4) the petitioner cannot show cause and prejudice excusing the default.”

Peoples v. Lafler, T2>4 F.3d 503, 510 (6th Cir. 2013) (quoting Guilmette v. Howes, 624 F.3d 286,

290 (6th Cir. 2010) (en banc)).

A., Claims Found Defaulted under Michigan Court Rule 7.212fC¥5t

Anderson raised the following claims in his pro se brief on direct appeal: (1) the trial court

erroneously admitted Claudia Ford’s testimony as hearsay (the first part of Claim Three in

(

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No. 19-1616

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Anderson’s § 2254 petition); (2) the complaint was insufficient and invalid (Claim Seven in his

§ 2254 petition); and (3) the evidence was insufficient to support his murder conviction (Claim

Nine in his § 2254 petition). Although the state appellate court concluded that Anderson defaulted

these claims for failure to comply with Michigan Court Rule 7.212(C)(5), the district court’s

default determination was based solely on Anderson’s failure to comply with Michigan Court Rule

6.508(D)(3). Under these circumstances, the district court’s procedural ruling as to the three

claims raised in Anderson’s Rule 4 brief is debatable. See Howard v. Bouchard, 405 F.3d 459,

476 (6th Cir. 2005); see also Flood v. Phillips, 90 F. App’x 108, 114 (6th Cir. 2004).

Nevertheless, Slack also requires the petitioner to present a “valid claim” of the denial of a

constitutional right, even if reasonable jurists could debate whether the claim is procedurally

defaulted. 529 U.S. at 484. To meet this standard, “it is not enough for a petitioner to allege claims

that are arguably constitutional-, those 'claims must also be arguably valid or meritorious.”

Dufiesne v, Palmer, 876 F.3d 248, 254 (6th Cir. 2017) (per curiam). For the reasons below,

Anderson cannot meet the first prong of Slack—the “valid claim” prong—regarding these three

claims that the district court found defaulted.

,1. Challenge to the Admission of Claudia Ford’s Testimony (Tart of Claim Three)

Anderson argued that the trial court erred by admitting the hearsay testimony of Claudia

Ford. Because this claim is based on the state court s evidentiary rulings, it is not cognizable in

this federal habeas corpus matter. See Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000)

Only when a state court’s evidentiary ruling denies the defendant a fundamentally fair trial will it

be questioned. See Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).

Here, the state trial court, in its decision rejecting Anderson’s post-conviction petition,

noted that Ford’s testimony was based on statements made by Wright as Wright and others were

disposing of guns used in committing the offenses.

The state court determined that Ford’s

testimony was admissible under Michigan Rule of Evidence 801(d)(2) as a statement made during

the course and in furtherance of a conspiracy. Thus, this claim is not valid and meritorious for

purposes of meeting Anderson’s burden under Dufresne.

(...>

No. 19-1616

-72. Insufficient and Invalid Complaint (Claim Seven)

Anderson argued that his complaint was invalid because it failed to meet state-law

requirements and was insufficient to meet the Fourth Amendment requirement of probable cause.

To the extent Anderson challenged the trial court’s jurisdiction because the State’s process was

allegedly defective, this is a non-cognizable question of state law. See Estelle v. Gamble, 502 U.S.

62, 67-68 (1991); Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976). To the extent that

Anderson’s claim may be construed as challenging his arrest, he failed to show that the State did

not provide an opportunity to litigate this Fourth Amendment claim, and this claim was thus not

cognizable in his federal habeas corpus case. See Stone v. Powell, 428 U.S. 465, 494-95 (1976).

Therefore, this claim challenging the complaint is not valid or meritorious under Dufresne.

3. Insufficiency of the Evidence (Claim Ninel

Anderson argued that the evidence was insufficient to support the premeditation and

deliberation elements of first-degree premediated murder in Michigan. Sufficient evidence exists

to support a conviction if, “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.” Jackson v. Virginia, 443 U.S. 307, 319, 324 (1979). When assessing the

sufficiency of evidence, this court does not weigh the evidence, assess the credibility of witnesses,

or substitute its judgment for that of the jury. United States v. Wright, 16 F.3d 1429, 1440 (6th

Cir. 1994). In Michigan, first-degree murder has two essential elements: (1) the intentional killing

of a person, and (2) premeditation and deliberation. Mich. Comp. Laws § 750.316(1 )(a); People

v. Bennett, 802 N.W.2d 627, 633 (Mich. Ct. App. 2010). Premeditation and deliberation may be

established by evidence showing: “(l)the prior relationship of the parties; (2) the defendant’s

actions before the killing; (3) the circumstances of the killing itself; and (4) the defendant’s

conduct after the homicide.” People v. Schollaert, 486 N.W.2d 312, 318 (Mich. Ct. App. 1992).

In rejecting this claim in its post-conviction decision, the state trial court relied on

testimony by numerous witnesses implicating Anderson as the shooter, cell phone records, shells

found at the scene of the crime, the recovered shotgun, photographs of Anderson with the guns

No. 19-1616

-8-

used in the crime, physical evidence of buckshot damage, and incriminating statements that

Anderson had apparently made in a television interview. The state court noted Anderson’s active

assistance and participation in the offenses, “including providing Wright with the .44 caliber

weapon used in the killing, and Anderson’s firing of the shotgun.” This evidence established the

prior relationship of the parties, Anderson’s planning of the murder by providing a weapon to one

of the co-defendants, and his actions in concert with his others to carry out the murders,

demonstrating premedication and deliberation. Viewing this evidence in the light most favorable

to the prosecution, a rational trier of fact could have found the elements of first-degree murder in

Michigan. See Jackson, 443 U.S. at 324 n.16; Stewart v. Wolfenbarger, 595 F.3d 647, 653 (6th

Cir. 2010). Therefore, this clam is not valid or meritorious.

B. Claims Defaulted under Rule 6.508(D)(3)

The district court determined that the remaining claims—the other part of Claim Three and

Claims Four, Five, Six, Eight, and Ten—were procedurally defaulted because he did not raise them

on direct appeal. Although Anderson raised these claims on post-conviction review, the trial court

relied on an independent and adequate state procedural rule for denying relief—Michigan Court

Rule 6.508(D)—to reject the claims. See Amos v. Renico, 683 F.3d 720, 733 (6th Cir. 2012). The

rule provides that a state court may not grant post-conviction relief if the motion “alleges grounds

for relief, other than jurisdictional defects, which could have been raised on appeal from the

conviction and sentence . . . unless the defendant demonstrates (a) good cause for failure to raise

such grounds on appeal . . . and (b) actual prejudice.” Mich. Ct. R. 6.508(D)(3). Because the

orders by the state appellate and supreme courts were ambiguous and unexplained, we must “look

to the last reasoned state court opinion to determine the basis for the state court’s rejection of [the]

claim[s],” Guilmette, 624 F.3d at 291, which was by the trial court. That court relied on Rule

6.508(D)(3), noting that Anderson had failed to raise those claims on direct appeal and did not

show cause and prejudice to excuse that failure. As a result, Anderson procedurally defaulted the

second part of Claim Three and Claims Four, Five, Six, Eight, and Ten because Michigan Court

Rule 6.508(D)(3) prevented the state courts from reaching the merits of those claims.

No. 19-1616

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Habeas corpus review of procedurally defaulted claims “is barred unless the prisoner can

demonstrate cause for the default and actual prejudice ... or demonstrate that failure to consider

the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.

722, 750 (1991). Anderson relied on his appellate counsel’s alleged ineffective assistance as cause

for his default. However, for the reasons below, he failed to meet his burden of showing prejudice

under Strickland, supra, or that the failure to consider his claims would result in a fundamental

miscarriage of justice.

1. Erroneous Jury Instructions (Part of Claim Three)

Anderson argued that the trial court erred by presenting jury instructions regarding aiding

and abetting. Because this claim is based on a state court’s evidentiary rulings, it is not cognizable

in this federal habeas corpus matter. See Seymour, 224 F.3d at 552. Only when a state court’s

evidentiary ruling denies the defendant a fundamentally fair trial will it be questioned. See Bugh,

329 F.3d at 512. Anderson fails to show that the admission of these instructions denied him a

fundamentally fair trial. Therefore, reasonable jurists would not debate whether the district court

was correct in its procedural ruling on this claim. See Slack, 529 U.S. at 484.

2. Trial Court’s Failure to Correct Prosecutor’s Actions (Claim Four)

Anderson argued that the trial court abused its discretion when it failed to “estop” the

prosecutor from presenting the false testimony as alleged in his first claim. Anderson was not

prejudiced by failing to timely raise this claim in state court because, as discussed in the above

analysis of Anderson’s first claim, he presented nothing to establish that the prosecutor presented

false testimony. Therefore, his claim that the trial court erred in failing to intervene to prohibit the

alleged misconduct also lacks merit. Reasonable jurists would thus not debate the district court’s

procedural ruling on this claim under Slack.

No. 19-1616

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3. Fraud Upon the Court (Claim Fivel

Anderson argued that he was entitled to a new trial because the prosecutor’s presentation

of Henderson’s allegedly false testimony equated to fraud upon the court. Again, this argument is

grounded in Anderson’s allegation that the prosecutor knowingly allowed false testimony to be

presented at Anderson’s trial—a claim that was meritless for the reasons above. Because Anderson

was not prejudiced by this failure in that the claim lacks merit, reasonable jurists would not debate

the district court’s procedural ruling on this claim.

4. Withholding of Exculpatory Evidence (Claim Six')

Anderson argued that the prosecutor withheld the following exculpatory evidence in

violation of Brady v. Maryland, 373 U.S. 83 (1963): 1) a letter written by Ford; 2) the transcripts

from Henderson’s trial; and 3) other unspecified evidence allegedly withheld by the Kalamazoo

police. Under Brady, a prosecutor may not suppress material evidence favorable to a defendant.

Id. at 87. A Brady violation has three elements: “[t]he evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; the evidence must have been

suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”

Stickler v. Greene, 527 U.S. 263, 281-82 (1999).

Anderson’s challenge regarding the police information was not based on evidence that

Kalamazoo police withheld but to the type of evidence that he believed the police should have

pursued and did not. Regarding the Henderson transcripts, the state court found that Anderson

failed to show that these were unavailable to counsel. Anderson failed to show that he was

prejudiced for counsel’s failure to present this claim on appeal because his challenges do not meet

the elements of a Brady violation. Therefore, reasonable jurists would not debate the district

court’s procedural ruling on this claim.

5. Denial of Equal Protection When Bound Over (Claim Eight)

Anderson argued that the trial court abused its discretion when it bound him over for trial

on open murder charges. Anderson alleged that when he was bound over, he was treated

differently from similarly situated individuals, bringing his equal protection claim under a “class

No. 19-1616

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of one” theory. See Warren v. City of Athens, 411 F.3d 697, 710-11 (6th Cir. 2005). He also

argued that the evidence was insufficient to support a bindover for the ultimate charge of firstdegree premediated murder and that Michigan’s open-murder statute generally violates the right

to equal protection. Anderson failed to meet his burden of showing that he was treated differently

from others similarly situated to establish an equal protection claim and was not prejudiced by

counsel’s failure to raise the claim because he would not have succeeded on it. As a result,

reasonable jurists would not debate the district court’s procedural ruling on this claim.

6. Ineffective Assistance of Appellate Counsel (Claim Ten)

Anderson’s tenth claim was that his appellate counsel performed ineffectively and that two

of the issues she did raise were “frivolous” and without merit. Anderson argued that appellate

counsel should have raised a claim that his trial counsel was ineffective for failing to pursue the

expert testimony of a firearms expert, Mr. Balesh. Logically, Anderson could not have raised

claims in his direct appeal that his appellate attorney made constitutionally significant mistakes in

that very appeal. See Guilmette, 624 F.3d at 291. Thus, Anderson did not procedurally default

those ineffective-assistance-of-appellate-counsel claims. Nevertheless, for the reasons below,

reasonable jurists would not debate the district court’s dismissal of this claim on the merits.

Attached to Anderson’s habeas petition is an affidavit by Balesh stating that he had

reviewed case documents and photos, met with Anderson’s attorney for about two hours, and was

paid $750 for the consultation. However, according to a private investigator’s subsequent report,

counsel determined that Balesh’s opinion and testimony would not be beneficial to Anderson’s

case.

“[Ejffective assistance does not require counsel to raise every nonfrivolous argument on

appeal.” Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th Cir. 2008). In the appellate context,

“only when ignored issues are clearly stronger than those presented, will the presumption of

effective assistance of counsel be overcome.” Sylvester v. United States, 868 F.3d 503, 510 (6th

Cir. 2017) (quoting Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002)) (alteration omitted).

The failure to raise an issue on appeal constitutes ineffective assistance only if there is a reasonable

X',-

(

No. 19-1616

- 12probability that inclusion of the issue would have changed the outcome of the appeal. Wade v.

Timmerman-Cooper, 785 F.3d 1059, 1077 (6th Cir. 2015).

Here, trial counsel explored the possibility of using Balesh as an expert but determined that

his opinion would not have been beneficial. In evaluating trial counsel’s performance, this court

may presume that counsel’s conduct fell “within the wide range of reasonable professional

assistance” because Anderson cannot overcome the presumption that trial counsel’s decision not

to further pursue Balesh’s expert opinion was reasonable and sound trial strategy. See Strickland,

466 U.S. at 689. As a result, appellate counsel cannot be faulted for failing to raise the meritless

argument that trial counsel was ineffective for failing to raise this claim. See Shaneberger v. Jones,

615 F.3d 448, 452 (6th Cir. 2010).

Based on the above, the COA is DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

• Case 2:18-cv-11133-TGE^APP ECF No. 13 filed 04/30/19 PagelD.3682 Page 1 of 31

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STEVEN B. ANDERSON,

2.T8-CV-11133-TGB

Plaintiff,

ORDER

vs.

THOMAS WINN,

Defendant.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

DENYING A CERTIFICATE OF APPEALABILITY, AND

GRANTING PERMISSION TO APPEAL TN FORMA PAUPERIS

Steven B. Anderson, (“Petitioner”), a Michigan prisoner, filed this

action under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial

in the Kalamazoo Circuit Court of first-degree premeditated murder

Mich. Comp. Laws § 750.316, assault with intent to commit murder,

Mich. Comp. Laws § 750.83, felon in possession of a firearm, MlCH. COMP.

Laws § 750.224f, and three counts of possession of a firearm during the

commission of a felony. MlCH. COMP. LAWS § 750.227b. Petitioner was

sentenced as a third-time habitual felony offender to a controlling

. -Case 2:18-cv-11133-TGB-APP ECF No. 13 filed 04/30/19

PagelD.3683

Page 2 of 31

sentence of life imprisonment for the murder conviction and lesser terms

for his other offenses.

The petition raises ten claims: (1) the prosecutor committed

misconduct by introducing false testimony, (2) Petitioner was denied the

effective assistance of trial and appellate counsel, (3) the trial court erred

in admitting hearsay, (4) the trial court erred in failing to intervene when

the prosecutor committed misconduct, (5) the prosecutor engaged in

additional acts of misconduct, (6) the prosecutor withheld exculpatory

evidence, (7) Petitioner’s trial counsel was ineffective for additional

reasons, (8) the trial court lacked jurisdiction, (9) the jury’s verdict was

against the great weight of the evidence, and (10) the ineffectiveness of

Petitioner s appellate counsel constitutes cause to excuse any procedural

default of the claims raised on state post-conviction review.

The Court denies the petition because Petitioner’s claims are

without merit or barred by his state court procedural default. The Court

also denies Petitioner a certificate of appealability, but grants permission

to appeal in forma pauperis.

• Case 2:18-cv-11133-TGB-APP ECF No. 13 filed 04/30/19

PagelD.3684

Page 3 of 31

I. Background

The Michigan Court of Appeals summarized the facts surrounding

Petitioner’s case as follows:

The prosecution arises out of a shooting in Kalamazoo

m which one man was killed and a second man was injured.

1 here was strong evidence reflecting that the attack on the

two victims was perpetrated by Anderson, Wright, who had

allegedly been assaulted weeks earlier by, among others, the

homicide victim, and Jaquan Henderson, who was convicted

of second-degree murder and other charges following a

separate trial. The evidence showed that, during the

commission of the offenses, Wright wielded and fired a .44

caliber handgun, Henderson employed a .380 caliber weapon,

and that Anderson discharged a shotgun. The evidence

further indicated that the surviving victim had been struck by

shotgun fire, while the deceased was hit by a gunfire from a

.44 caliber firearm.

People v. Anderson, 2014 WL 2931820 at *1 (Mich. Ct. App. June 26

2014).

The evidence presented at trial indicated that

on December 17,

2011, Romney Hunter and other men assaulted and robbed Robert

Wright. Wright was hospitalized after the assault,

Wright told the police

he did not know who assaulted him.

A few weeks later, during the early evening hours of January 8,

2012, Hunter and Troy Whitfield were standing outside

a residential

address in Kalamazoo, while friends were drinking and working

on a

. Case 2:18-cv-11133-TGB-APP ECF No. 13 filed 04/30/19

PagelD.3685

Page 4 of 31

vehicle parked in the driveway. Whitfield heard shots, so he jumped in

the back of the vehicle, and he and two other men drove away. Whitfield

sustained two shots to his leg.

When Whitfield and the others returned to the scene, Whitfield saw

Hunter lying on the ground at the end of the driveway. Hunter had been

shot in the chest and killed. An ambulance arrived and transported

Whitfield to the hospital.

On the ground at the scene of the shooting the police found

Petitioner’s cell phone. They also found several spent casings and an

empty 12-gauge shotgun shell. A shotgun consistent with the shell found

at the scene was subsequently located in the Kalamazoo River.

Santrell Sandifer testified that on January 8, 2012, he was with

Petitioner when Petitioner saw Hunter. Petitioner called Wright and told

him that he spotted one of the guys that jumped him. They met up with

Wright, and Petitioner handed him a handgun. Henderson was also

present. Sandifer was charged with two counts of accessory after the fact

and testified as a prosecution witness pursuant to a plea agreement.

Sandifer testified that Petitioner, Wright, and Henderson walked

towards the house where the shooting eventually happened, while

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Sandifer drove past them. Sandifer heard gunshots. He saw Petitioner

running through a field, and he saw Henderson and Wright running

down the street.

Petitioner got in Sandifer’s car and they drove to Bernice Wyatt’s

house; Wyatt was Petitioner’s girlfriend. Sandifer saw Petitioner pull a

shotgun out of his pants leg. Petitioner said that the shotgun jammed

and that he had lost his cell phone. (The shotgun later found in the

Kalamazoo River, which matched the shotgun shell discovered at the

scene of the shooting, was also jammed.) Sandifer later heard Petitioner

call Wyatt and tell her to have someone take the guns to his sister’s

house.

Joshua Shoffner testified that he was friends with Petitioner. He

identified photographs of the men brandishing guns that were consistent

with those used in the shooting. On the evening of January 8, 2012,

Shoffner was at Wyatt’s home. Petitioner told Shoffner that he was

present at a shooting and that his shotgun jammed after he shot it.

Petitioner also said that he dropped his cell phone at the scene.

Later, at Wyatt’s direction, Shoffner took a garbage bag to another

house. He saw the barrel of a shotgun poking out of the bag. The next

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morning Shoffner heard Petitioner talking to someone on the phone

about getting rid of something in the river.

Claudia Ford testified that Wright was the father of her children.

On January 8, 2012, Ford heard Wright call Petitioner and Henderson.

She was also present in the car with Wright when he met Petitioner and

Sandifer. She did not see any guns, but she heard

a reference to the

shotgun. Ford testified that they drove to the area of the shooting, and

Henderson and his brother arrived in another vehicle. Ford testified

pursuant to a plea agreement in a pending drug case.

Ford observed Wright, Petitioner, and Henderson walk off. She did

not see any weapons. Ford heard gunshots. She saw Henderson

get into

one vehicle while Wright walked back from the location of the shooting.

Sheila Mister testified that a few days after the shooting, Shoffner

brought a black garbage bag to her home. He placed it on her back porch,

where it remained until it was removed a few days later.

Prior to Petitioner’s trial, co-defendant Jaquan Henderson

was

tried and convicted of second-degree murder. When the prosecutor called

Henderson as a witness, Petitioner’s counsel objected, arguing that the

prosecutor was knowingly presenting false testimony. Defense counsel

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noted that Henderson testified in his own defense at his trial that he lied

to the police during interviews, and that the prosecutor conducted a

lengthy cross examination “where it was apparent that [the prosecutor]

caught Mr. Henderson, again, even lying during his own trial.” ECF No.

8-10 PageID.696.

Defense counsel indicated that she had reviewed Henderson’s trial

transcripts, and that “it was very apparent to the prosecution that he was

not truthful at his own testimony. There were numerous pages where he

was cross- examined by the - by the prosecutor where it came off that he

was not truthful. So, I — I have no faith that this man will uphold his oath

to tell the truth today. He’s not been truthful up until this point.” Id. at

PageID.696—97.

The prosecutor responded:

[W]hat was given in terms of any, I guess, incentive to

testify on Mr. Henderson’s behalf is that when he testifies, the

thing that I can do for him is, I will write to the prison as it

relates to his cooperation in this matter and I will explain

fully what he has done in that regards. It was also discussed

with his appellate attorney and that Mr. Henderson should be

aware, that if his appeal somehow was successful that

anything he says here in court today that he could not be

facing charges on any more serious matter if it went back,

because that was first-degree open — murder back then. The

jury came with second-degree. So, whatever happens here, if

his appeals granted, it would still go back and he would be

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subject to not the more serious first-degree - life time without

parole offense. And, I believe that Mr. Henderson was made

aware of that.

Id. at PagelD.699-700.

The trial court overruled the objection, stating:

That’s certainly something that the attorneys can

explore given what was indicated in the police reports. I don’t

know what’s in there. I don’t have those in front of me. Given

his testimony at trial - but, I’m not here to make a decision as

to whether or not somebody’s lying or not. That’s up to the

jury. They can certainly make that determination on their

own, and unfortunately there are folks that do not tell the

truth under oath. And, again, that’s for the jury to sort out. I

don’t - I’m not aware of any authority I have to exclude

someone just because they have said an inconsistent

statement, or again, have lied in the past. That’s not for me to

determine. That’s for all of you to question with regards to

cross-examination.

Id. at PagelD.700.

Defense counsel renewed the objection later in the trial, noting that

Henderson had taken a polygraph examination which indicated he was

being deceptive. ECF No. 8-11 PagelD.755-56. The prosecutor informed

the court that the polygraph questions related to a firearm and what he

may have done with it during the commission of the offense. The

detectives then re-interviewed him, and he gave further information. Id.

at PagelD. 756. The prosecutor added, “Let’s be clear, I’m not putting up

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a witness who I believe will lie intentionally about any material fact in

this case.” Id. at PagelD.756-57.

Henderson testified that he was then in prison because of his role

in the shooting. He was testifying in exchange for the prosecutor writing

a letter to the prison authorities. Henderson testified that had known

Wright for about a year. Henderson met Petitioner on the night of the

incident. On January 8, 2012, Wright called Henderson and told him to

meet him in a residential neighborhood. When Henderson arrived,

Wright asked him to beat up a guy who was around the corner because

the guy had jumped him.

Petitioner and Sandifer then arrived. Wright told Petitioner that he

was going to have Henderson “whoop” the guy. Petitioner said “I ain’t

come to watch nobody fight. I’m fixin’ to body one of them.” Id. at

PagelD.716. Petitioner showed Henderson a pistol-gripped shotgun that

was underneath his sweatshirt.

The three men walked to the scene of the shooting. Petitioner fired

the first shot with the shotgun toward Whitfield, but then Henderson saw

Petitioner struggle with the gun. Petitioner told Henderson to shoot.

Henderson testified that he fired a handgun in the air several times.

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Henderson ran away, and he heard more shots fired. He did not see if

Wright fired any shots.

Sandifer drove up in a vehicle and Petitioner jumped inside. The

men went their separate ways, and Henderson threw his handgun away.

Later, Wright told Henderson that Petitioner dropped his cell phone

during the incident. Henderson subsequently discarded the shotgun used

in the incident in the river. He later told the police where he threw it.

On cross-examination, Henderson testified that he was serving a

35-to-80-year sentence, and that the prosecutor had agreed to write a

letter to the prison on his behalf. Henderson claimed that he was

testifying at the instant trial to bring closure to Hunter’s family because

they needed to know who shot Hunter.

Henderson admitted that he had lied to the police when they

interviewed him prior to trial. He had an ongoing relationship with

Detective Ghiringhelli as a paid informant. Henderson was trying to

pump him for information, and he was trying to steer Ghiringhelli in

another direction. Henderson decided to be truthful after the police

showed him that his cell phone number was involved. He admitted that

he met with the police on several occasions, that he made lengthy

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statements, and that he told them “partly truth and partly lies.” Id. at

PageID.758, 825.

Henderson admitted that in his first statement to Ghiringhelli, he

untruthfully said he was shooting dice at the time of the incident and not

involved. His second statement was to Detective Beauchamp, in which he

admitted he was involved in the incident, but he lied about certain

details. The third statement was to a few other detectives, and

Henderson admitted he lied again about several details.

Henderson’s brother, Daniel Jones-Davis, testified that he drove

with his brother to the scene of the shooting. Jones-Davis heard shots,

and Henderson ran back to his vehicle. He did not see Henderson with a

firearm. He later dropped his brother off near two bridges, but he didn’t

know what his brother did at the bridges.

Detective Michael Hecht testified that he interviewed Petitioner on

January 11, 2012. Petitioner initially said that he was at Wyatt’s home

at the time of the incident. He said he lost his cell phone earlier that day.

After Hecht told Petitioner that they found his at the scene, the interview

ended.

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Detective Brian Beauchamp testified that he reviewed phone

made at the jail between Shoffner and Petitioner, during which the

calls

men

used nicknames for two of the guns used in the shooting. Cell phone

records were admitted showing communications between

Petitioner,

Ford, Henderson, Constance Searcy, Wright, and Wyatt around the time

of the incident.

Following his conviction and sentence, Petitioner filed

a claim of

appeal in the Michigan Court of Appeals. His brief on appeal raised the

following claims:

I. Is Defendant entitled to a new trial where he was denied

his state and federal due process rights where his convictions

were obtained through the use of false and/or perjured

testimony by co-defendant Jaquan Henderson, and where the

prosecutor presented inconsistent theories during the July

trial of co-defendant Henderson and the instant trial of Mr

Anderson?

II. Did the trial court commit plain error in failing to instruct

the jury that it should view with caution the testimony of

Santrell Standifer, Claudia Ford, and Joshua Shoffner, who

were accomplices during and/or after the fact to’ Mr.

Anderson’s alleged crimes? Did this deny Mr. Anderson his

state and federal constitutional right to present a defense?

III. Alternatively was Petitioner denied his state and federal

constitutional right to the effective assistance of counsel,

where trial counsel failed to request a cautionary instruction

on the unreliability of accomplice testimony with regard to

Sandifer, Ford and Shoffner?

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Petitioner also filed a supplemental pro se brief in which he raised

the following additional claim:

Was Defendant’s right to a fair trial contaminated,

compromised and ultimately corrupted through a series of

errors perpetrated by defense counsel?

The Michigan Court of Appeals affirmed Petitioner’s convictions in

an unpublished opinion. Anderson, 2014 WL 2931820, at *7.

Petitioner subsequently filed an application for leave to appeal in

the Michigan Supreme Court, raising the same claims that he presented

to the Michigan Court of Appeals, along with the following new claims:

I. Defendant’s due process of rights were violated. Key

components as defined in MCR 8.119(C) and MCR 2.107(G)

were not followed, making my arrest a violation of my due

process of rights.

II. Prosecutorial misconduct[:] prosecutor violated my state

and federal constitutional rights by failing to give exculpatory

evidence to the defense. Brady violation.

III. The aiding and abetting law is unconstitutional and has

deprived me the rights to a fair trial.

The Michigan Supreme Court denied the application because it was

not persuaded that the questions presented should be reviewed by the

Court. People v. Anderson, 858 N.W.2d 454 (Mich. 2015) (Table).

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

from judgment, raising the following claims:

I. The Defendant was denied his state and federal

constitutionally protected right to effective assistance of

counsel where counsel failed to present a defense, investigate

and call witnesses to testify in Defendant’s favor, denying him

compulsory process.

II. The trial judge abused her discretion, violating

Defendant’s due process and rights to a fair trial when she

failed to stop the prosecutor’s prejudicial actions.

III. The trial court abused its discretion and reversibly

prejudiced the Defendant when admitting hearsay testimony

into evidence which violated the Confrontation Clause. Trial

judge further abused her discretion in allowing jury

instructions, that relieved the prosecution of its burden of

proving every element of the first-degree murder charge

beyond a reasonable doubt.

IV. The verdict is against the great weight of the evidence,

constituting in a miscarriage of justice, violating Defendant’s

Fourteenth Amendment right.

V. Defendant is entitled to relief from judgment where

misconduct clearly demonstrates that a fraud was

perpetrated upon the court by the prosecutor.

VI. Defendant was denied due process of his constitutional

rights where the prosecutor suppressed exculpatory and

impeachment evidence and where law enforcement failed to

collect evidence in bad faith, preventing the Defendant from

having a fair trial.

VII. Trial counsel’s failure to object to the criminal complaint

rendered her ineffective. Jurisdictional defect, due process,

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and unlawful detainment all arose out of the invalid,

insufficient criminal complaint violating multiple state and

federal rights of the defendant.

VIII. Defendant inserts that his equal protection rights were

violated where the district judge abused her discretion in

binding Defendant over on open murder charges and where

circuit court judge abused her discretion in denying motion to

quash bind over.

The trial court denied the motion for relief from judgment under

Michigan Court Rule 6.508(D)(2) and (3), finding that review of the new

claims was barred by Petitioner’s failure to show that his appellate

counsel was ineffective for failing to raise the claims on direct review.

ECF No. 8-22.

Petitioner filed an application for leave to appeal in the Michigan

Court of Appeals. The court denied the application for leave to appeal for

failure to establish that the trial court erred in denying the motion for

relief from judgment. People v. Anderson, No. 335589 (Mich. Ct. App.

April 4, 2017). Petitioner appealed this decision to the Michigan Supreme

Court, but his application for leave to appeal was denied under Michigan

Court Rule 6.508(D). People v. Anderson, 908 N.W.2d 887 (Mich. 2018)

(Table).

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II. Standard of Review

28 U.S.C. § 2254(d)(1) curtails a federal court’s review of

constitutional claims raised by a state prisoner in a habeas action if the

claims were adjudicated on the merits by the state courts. Relief is barred

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 [this] precedent.’” Mitchell

v. Esparza, 540 U.S. 12, 15-16 (2003), 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.”

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Wiggins v. Smith, 539 U.S. 510, 520 (2003) quoting Williams, 529 U.S. at

413.

“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.S.

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).

III. Analysis

A. Prosecutorial Misconduct

Petitioner first claims that the prosecutor committed misconduct by

eliciting false testimony from Henderson. He argues that the prosecutor

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maintained during Henderson’s trial that he was untruthful, but then

reversed course during Petitioner’s trial by calling him as a witness and

urging the jury to believe his testimony in the later proceeding.

After reciting the controlling constitutional standard, the Michigan

Court of Appeals denied relief on the merits by finding that the

prosecutor did not take contradictory positions with respect to

Henderson, and Petitioner did not show that the prosecutor knew his

testimony to be false:

Anderson focuses on statements made by Henderson at

both Henderson’s trial and at Anderson’s trial, wherein

Henderson testified that Anderson had a shotgun, that

Anderson threatened him with the shotgun and made him

stay at the scene, that Anderson made him fire his .380 caliber

weapon, that Anderson fired first at one of the victims, that

Henderson simply fired his gun into the air, and that part of

the plan had been to rob the victims and shoot them if they

attempted to use a gun.

Initially, we point out that Anderson fails to supply any

relevant support for his conclusory position that Henderson’s

testimony was false. Indeed, Anderson’s appellate claims

indicate that Henderson’s testimony at the two trials was

consistent. Anderson argues that the prosecutor at

Henderson’s trial adamantly maintained to the jury that

Henderson was a liar, yet that very same prosecutor at

Anderson’s trial vigorously contended that Henderson was a

credible witness. It appears, therefore, that Anderson’s theory

is that Henderson’s testimony at Anderson’s trial was false,

given that the prosecutor accused Henderson of lying at

Henderson's trial, and that the prosecutor thus knowingly

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used false testimony at Anderson’s trial. We fail to see how

this theory necessarily establishes the falsity of Henderson’s

testimony. Moreover, at Henderson’s trial, the prosecutor

never asserted that Henderson was lying about Anderson

being involved and participating in the offenses, about

Anderson providing assistance in carrying out the crimes,

about Anderson wielding a shotgun, and about Anderson first

discharging the shotgun. On these matters, the prosecutor’s

theory at both trials was entirely consistent. 1 Rather, at

Henderson's trial, the prosecutor challenged Henderson's

credibility regarding his claims that he only thought that a

beating would take place, not a shooting and killing, that

Anderson forced him to fire his gun, and that Henderson

innocently shot into the air in response. At Anderson’s trial,

the prosecutor’s arguments that Henderson was credible were

not expressly linked to Henderson's intent or his belief as to

whether or not a shooting would occur, to Anderson forcing

Henderson to fire his gun, or to Henderson shooting skyward.

In fact, the prosecutor specifically acknowledged to the jury

that Henderson clearly was “not clean” and had been deeply

involved in the offenses, firing his .380 caliber weapon.

Furthermore, Henderson’s criminal intent and discharge of

his weapon ultimately did not have any meaningful bearing

on Anderson's guilt. Assuming that any of Henderson’s

testimony at Anderson’s trial was tainted, it was not material

to Anderson's guilt and did not affect the jury's verdict,

especially considering the overwhelming evidence of

Anderson's guilt, including admissions to friends and physical

evidence, aside from Henderson's testimony. Aceval, 282

Mich. App. at 389. Reversal is unwarranted.

[FN 1:] As such, the prosecutor did not present

“inherently factually contradictory theories,” given that there

was no inconsistency at the core of the prosecutor's cases

against defendants for the same crime. Smith v. Groose, 205

F.3d 1045, 1052 (8th Cir. 2000).

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[FN 2:] We note that, although Henderson made

inconsistent statements to police prior to the trials, the

statements were not concealed by the prosecutor and

Anderson freely used them in an attempt to impeach

Henderson's credibility.

Anderson, 2014 WL 2931820, at *1-2.

This decision did not involve an unreasonable application of clearly

established Supreme Court law. “The deliberate deception of court and

jury by the presentation of testimony known to be perjured violates a

defendant’s due-process rights.” Monea v. United States, 914 F.3d 414,

421 (6th Cir. 2019) (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935))

(internal quotation marks omitted); see also Giglio v. United States, 405

U.S. 150, 153 (1972). “To prevail on such a claim, [the petitioner] must

show that the Government knowingly presented false testimony that

materially affected the proceeding.” Monea, 914 F.3d at 421 (citing

United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989)). A

petitioner cannot simply point to “[m]ere inconsistencies in the

testimony,” but must show that the testimony is “indisputably false.” Id.

(quoting Lochmondy, 890 F.2d at 823) (internal quotation marks

omitted).

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As the state court reasonably concluded, Henderson’s testimony at

the two trials was fairly consistent. At both proceedings he minimized his

own involvement in the crime and shifted blame to the other men.

Petitioner fails to identify exactly what portion of Henderson’s testimony

is indisputably false. Rather, he argues only that Henderson was an

unreliable witness because he lied to the police, failed a polygraph

examination, and because the trial prosecutor argued in closing that

Henderson minimized his involvement and was still not being completely

truthful. But the prosecutor did not attempt to pass indisputably false

testimony off as the truth at Petitioner’s trial. Rather, the prosecutor

properly argued that the portion of Henderson’s testimony describing

Petitioner and Wright’s involvement in the shooting was true despite his

efforts to minimize his own culpability. The prosecutor openly

acknowledged the problems with Henderson’s credibility as to his own

culpability. The jury was not misled, and in any event, pointing to mere

inconsistencies in Henderson’s testimony does not show that the

prosecutor committed reversable misconduct. Lochmondy, 890 F.2d at

822.

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Moreover, a habeas petitioner is not entitled to relief based on trial

court error unless he demonstrates that the error “had a substantial and

injurious effect or influence in determining the jury’s verdict,” Brecht v.

Abrahamson, 507 U.S. 619, 622 (1993); Holland v. Rivard, 800 F.3d 224,

243 (6th Cir. 2015). A showing of “substantial and injurious effect or

influence” means “actual prejudice.” Gover v. Perry, 698 F.3d 295, 299

(6th Cir. 2012) (citing Brecht, 507 U.S. at 637).

The success of the prosecution in no way hinged on Henderson,

significant as he was. Aside from Henderson, multiple witnesses testified

to Petitioner’s involvement in the crime and his incriminating statements

and actions following the shooting. The accounts of these witnesses were

corroborated by the fact that Petitioner’s cell phone was found at the

scene and the shotgun was found in the river. Any error in the admission

of Henderson’s testimony did not have a substantial impact on the

outcome of the trial.

Petitioner’s first claim is without merit.

B. Ineffective Assistance of Trial Counsel

Part of Petitioner’s second claim was raised in on direct appeal in

his pro se supplemental brief. Petitioner claims that his trial counsel was

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ineffective for failing to call a number of witnesses in his defense and for

a variety of other reasons. After reciting the controlling constitutional

standard, the Michigan Court of Appeals rejected the claim on the merits

as follows:

Anderson argues that defense counsel failed to

interview and call several lay witnesses to testify in regard to

whether the victims and/or their friends may have also had

guns at the scene of the shooting and to impeach a witness

who testified against Anderson. In support, Anderson relies

solely on his own unsworn affidavit. “Because the defendant

bears the burden of demonstrating both deficient performance

and prejudice, the defendant necessarily bears the burden of

establishing the factual predicate for his claim.” Carbin, 463

Mich, at 600. The unsworn affidavit falls woefully short of

establishing the factual predicate for Anderson's claim, i.e.,

establishing what these other purported witnesses would

have testified to had they been called to the stand. Moreover,

the requisite prejudice has not been established. Even had the

victims been carrying guns, the evidence overwhelmingly

showed that the victims were effectively ambushed, not that

Anderson, Wright, and Henderson fired in self-defense. And

the impeachment of the one witness would not have affected

the outcome of the trial in light of the extensive evidence of

Anderson's guilt.

Anderson also argues that defense counsel was

ineffective for failing to call an expert witness on firearms.

Anderson, however, has not shown that counsel failed to

investigate the possibility of an expert and, in the absence of

how an expert would have testified, Anderson has not

overcome the strong presumption that counsel’s decision not

to call an expert was sound trial strategy, nor has prejudice

been established. Carbin, 463 Mich, at 600.

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Related to counsel’s investigation of Anderson’s case,

Anderson also alleges on appeal that counsel failed to explore:

evidence of other potential weapons, evidence of another

shooter, and the origins of the weapons used in the shooting

to establish that Anderson had no connection to the guns.

These claims are not well-developed and nothing in the record

indicates that counsel failed to investigate these matters or

that, had these issues been explored, there was a reasonable

probability of a different outcome (prejudice). Carbin, 463

Mich, at 600. Anderson has not satisfied his burden of

establishing the factual predicate of his claims. Id.

Anderson next maintains on appeal that defense counsel

infringed on his right to testify. Informed on the record that

he had a right to testify, Anderson stated that he was not

going to testify, thereby waiving his right to do so. See People

v. Simmons, 140 Mich. App. 681, 685 (1985). On appeal, he

has not presented any support for his claim that counsel

advised him unreasonably or even that, but for counsel’s

performance, he would have testified. Reversal is

unwarranted.

Anderson, 2014 WL 2931820, at *4-5.

This decision was a reasonable application of the law. To establish

ineffective assistance of counsel, a defendant must show both that: (1)

counsel’s performance was deficient, i.e., “that counsel’s representation

fell below an objective standard of reasonableness”; and (2) the deficient

performance resulted in prejudice to the defense. Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). “[A] court must indulge a

strong presumption that counsel’s conduct falls within the wide range of

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reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)). The test for prejudice is whether

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

errors, the result of the proceeding would have been different.” Id. at 694.

Given that Petitioner did not proffer the state courts with any

evidence to support his claims of ineffective assistance of trial counsel, it

was not unreasonable for the state appellate court to find that he did not

overcome the presumption that trial counsel’s alleged failings were the

result of reasonable trial strategy. The state court did not have before it

any evidence showing that counsel inadequately investigated the case or

failed to present additional defense evidence. Moreover, as the state court

found, the evidence presented at trial overwhelmingly indicated

Petitioner’s guilt. Petitioner made damning admissions to multiple

witnesses following the incident. His presence at the scene was

corroborated by his dropping his cell phone, and his involvement was

further established by evidence indicating that his shotgun was found in

the river where he directed it to be discarded, and in the jammed

' Case 2:18-cv-11133-TGB-APP ECF No. 13 filed 04/30/19

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Page 26 of 31

condition that he described. On this record, Petitioner has failed to show

that his counsel performed deficiently or that there was a reasonable

probability that the result would have been different but for his counsel’s

alleged failings.

Moreover, habeas review under 28 U.S.C. § 2254(d) is “limited to

the record that was before the state court that adjudicated the claim on

the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Petitioner

offered the state courts only his own affidavit claiming that he had

additional witnesses to present in his defense. Petitioner offered no

evidence to prove the content of the missing testimony or the availability

of other witnesses. He therefore failed to establish in the state courts that

his counsel performed deficiently or that he was prejudiced. See Clark v.

Waller, 490 F.3d 551, 557 (6th Cir. 2007) (citing Stewart v. Wolfenbarger,

468 F.3d 338, 353 (6th Cir. 2006)).

The state adjudication of the ineffective assistance of trial counsel

claims raised on direct review was reasonable. Petitioner has failed to

demonstrate entitlement to relief with respect to this claim.

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C. Procedural Default

Petitioner’s remaining claims were presented to the state courts in

his motion for relief from judgment and the appeal that followed its

denial. Petitioner claims that his appellate counsel was ineffective for

failing to raise these claims on direct appeal. The trial court found review

of the claims barred under Michigan Court Rule 6.508(D)(3) because

Petitioner failed to demonstrate “good cause” by way of his ineffective

assistance of appellate counsel claim. See ECF No. 8-22. The Michigan

Court of Appeals and Michigan Supreme Court subsequently denied

relief in short orders.

When the Respondent in a habeas case raises a procedural default

defense, as here, the district court must address it before reaching the

merits of the defaulted claims, especially when the procedural default

question is clear. Sheffield v. Burt, 731 F. App’x 438 at 441 (6th Cir.

2018).

If a claim is not considered by a state court “due to a state

procedural rule that prevents the state courts from reaching the merits

of the petitioner’s claim, that claim is procedurally defaulted and may not

be considered by the federal court on habeas review.” Seymour v. Walker,

Case 2:18-cv-11133-TGB-APP ECF No. 13 filed 04/30/19

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Page 28 of 31

224 F.3d 542, 549—50 (6th Cir. 2000) (citing cases). It is well-established

that Rule 6.508(D)(3) is such a rule, and that its application by the state

court bars habeas review of the defaulted claims. Amos v. Renico, 683

F.3d 720, 733 (6th Cir. 2012); Willis v. Smith, 351 F.3d 741, 745 (6th Cir.

2003). The state trial court applied this rule to Petitioner’s post

conviction claims, and they are therefore barred from review absent a

showing of cause and prejudice or that a failure to review the defaulted

claims would result in a fundamental miscarriage of justice. Guilmette v.

Howes, 624 F.3d 286, 289-92 (6th Cir. 2010) (en banc); Wainwright v.

Sykes, 433 U.S. 72, 84-87 (1977).

Petitioner claims that the ineffectiveness of his appellate attorney

constitutes cause to excuse his procedural default. Ineffective assistance

of appellate counsel can establish cause for a procedural default. See

Ivory v. Jackson, 509 F.3d 284, 294 (6th Cir. 2007). However, appellate

counsel does not need “to raise every nonfrivolous claim on direct appeal.”

Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). A petitioner can

overcome the presumption of effective assistance of counsel only when

the “[omitted] issues are clearly stronger than those presented.” Id.

(quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). A petitioner

Case 2:18-cv-11133-TGB-APP ECF No. 13 filed 04/30/19

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must show that the claims he contends should have been raised on appeal

were “dead-bang winner[s].” Meade v. Lavigne, 265 F. Supp. 2d 849, 870

(E.D. Mich. 2003), affd, 104 F. App’x 461 (6th Cir. 2004). “A ‘dead-bang

winner’ is an issue which was obvious from the trial record . . . and one

which would have resulted in a reversal on appeal.” Id. (internal citations

and quotation marks omitted).

Petitioner’s post-conviction review claims were not dead-bang

winners, and so appellate counsel was not ineffective for failing to raise

them. Appellate counsel raised reasonable claims on direct appeal, the

first one of which still forms Petitioner’s lead claim. Moreover, for the

reasons stated by the trial court in rejecting Petitioner’s post-convictions

—

claims on the merits in the alternative, Petitioner has failed to show that

his procedurally defaulted claims have any merit, let alone that they

were “dead-bang winners.” Bason v. Yukins, 328 F. App’x. 323, 324 (6th

Cir. 2009). Petitioner has failed to demonstrate cause to excuse his

default.

As Petitioner’s claims lack merit or are barred from review, the

petition will be denied.

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Page 30 of 31

IV. Certificate of Appealability

Before Petitioner may appeal this decision, the Court must

determine whether to issue a certificate of appealability. See 28 U.S.C.

§ 2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate of appealability may

issue “only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy § 2253(c)(2),

Petitioner must show “that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (citation and internal quotation marks omitted).

The Court finds that reasonable jurists would not debate the

resolution of Petitioner’s claims because they are devoid of merit or

barred from review. The Court will therefore deny a certificate of

appealability.

If Petitioner chooses to appeal the Court’s decision, however, he

may proceed in forma pauperis because an appeal could be taken in good

faith. 28 U.S.C. § 1915(a)(3).

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V. Conclusion

Accordingly, the Court DENIES WITH PREJUDICE the petition

for a writ of habeas corpus, DENIES a certificate of appealability, and

GRANTS permission to appeal in forma pauperis.

SO ORDERED.

DATED April 30, 2019

BY THE COURT:

/s/Terrence G. BergTERRENCE G. BERG

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was mailed to the parties of

record on this date, April 30, 2019, by electronic and/or ordinary mail.

S/A. Chubb

Case Manager and Deputy Clerk

* Case 2:18-cv-11133-TGB^PP ECP'No. 18 filed 07/25/19 ^agelD.3750 Page 1 of 2

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STEVEN B. ANDERSON,

Plaintiff,

Case No. 2:18-CV-11133

Hon. Terrence G. Berg

THOMAS WINN,

Defendants.

ORDER DENYING PETITIONER’S MOTION FOR

RECONSIDERATION

On April 30, 2019, the Court denied Petitioner’s petition for writ of

habeas corpus. The order denying the petition also denied a certificate of

appealability, but it granted Petitioner permission to appeal in forma

pauperis. On June 4, 2019, Petitioner simultaneously filed a motion for

reconsideration and a notice of appeal. ECF Nos. 15, 16.

The

Court lacks jurisdiction to consider the

motion for

reconsideration because Petitioner filed a notice of appeal. A notice of

appeal generally “confers jurisdiction on the court of appeals and divests

the district court of control over those aspects of the case involved in the

appeal.” Marrese v. Am. Academy of Orthopaedic Surgeons, 470 U.S. 373,

' r Case 2:18-cv-11133-TGBAPP ECPNo. 18 filed 07/25/19 ^gelD.3751

Page 2 of 2

379 (1985); Workman v. Tate, 958 F. 2d 164, 167 (6th Cir. 1992). The

Court

therefore

lacks jurisdiction to

consider

the

motion

for

reconsideration. See Raum v. Norwood, 93 F. App’x 693, 695 (6th Cir.

2004).

Accordingly, it is ORDERED that Petitioner’s motion for

reconsideration is DENIED.

SO ORDERED.

DATED July 25, 2019.

BY THE COURT:

/s/Terrence G. Berg

TERRENCE G. BERG

United States District Judge

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was mailed to the

parties of record on this date, July 25, 2019, by electronic and/or

ordinary mail.

S/A. Chubb

Case Manager and Deputy Clerk

Case 2:18-cv-11133-TGB-4PP ECF No, 11 filed 12/20/18

(

igelD.3677

Page 1 of 3

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STEVEN B. ANDERSON,

Petitioner,

Case No. 2:18-cv-11133

HON. TERRENCE G. BERG

. v.

THOMAS WINN,

Respondent.

ORDER DENYING WITHOUT PREJUDICE PETITIONER’S

MOTION FOR EVIDENTIARY HEARING AND DENYING

WITHOUT PREJUDICE PETITIONER’S MOTION FOR ORAL

ARGUMENT

This is a habeas action brought by a state prisoner under 28 U.S.C.

§ 2254. Petitioner’s motion for an evidentiary hearing, ECF No. 2, seeks

to make a factual record in support of his habeas claims including claims

of ineffective assistance of trial and appellate counsel. Petitioner also

moves for oral argument. ECF No. 10.

In Cullen v. Pinholster, 563 U.S. 170, 181—82 (2011), the Supreme

Court held that where habeas claims have been decided on their merits

in state court, a federal court’s review under 28 U.S.C. section

2254(d)(1)—whether the state court determination was contrary to or an

Case 2:18-cv-11133-TGB=APP ECF No. 11 filed 12/20/18

agelD.3678

Page 2 of 3

unreasonable application of federal law—is limited to the record re

viewed by the state courts. At this point in the proceedings, the Court

will deny without prejudice Petitioner’s motion for an evidentiary hear

ing until such time as it has reviewed the record and Respondent’s an

swer to determine whether a hearing is warranted. The Court will recon

sider the request on its own motion if it determines that some or all of

Petitioner’s claims survive review under Section 2254(d). Petitioner does

not need to file another motion requesting an evidentiary hearing.

The Court will also reconsider on its own motion whether the deci

sional process would be aided by oral argument.

Accordingly, Petitioner’s motion for an evidentiary hearing, ECF

No. 2, and motion for oral argument, ECF No. 10, are DENIED WITH

OUT PREJUDICE.

SO ORDERED.

Dated:

December 20, 2018 s/Terrence G. Berg

TERRENCE G. BERG

UNITED STATES DISTRICT JUDGE

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.