Petition for Writ of Certiorari — Toshi Edward Willingham, Petitioner v. Catherine S. Bauman, Warden

Supreme Court briefJul 15, 2020

Ask Donna

What actually matters in this document.

Text

APPENDIX A:

}

Sixth Circuit Court Order Denying Certificate of Appealability,

Willingham v. Bauman, No. 20-1017 (6th Cir., Apr. 22, 2020)

No. 20-1017

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

TOSHI EDWARD WILLINGHAM,

)

Petitioner-Appellant,

CATHERINE S. BAUMAN, Warden,

Respondent-Appellee.

Apr 22, 2020

DEBORAH S. HUNT, Clerk

ORDER

Before: COOK, Circuit Judge.

Toshi Edward Willingham, a Michigan prisoner proceeding pro se, appeals the district

court’s denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. This

court construes Willingham’s timely notice of appeal as an application for a certificate of

appealability (COA). See Fed. R. App. P. 22(b)(2).

Willingham’s convictions arose out of a confrontation with his former girlfriend, Ashley

Davis, in the parking lot of a liquor store in May 2015. Davis, who had gone to the liquor store

with Demetrious Howard and another individual, spoke with her cousin, Angela Hemphill, in the

parking lot of the store. During their conversation, Howard told Davis that Willingham was behind

her. In an effort to avoid Willingham, Davis returned to Howard’s car, but Willingham confronted

her and an argument ensued. Davis continued to argue with Willingham after she got into

Howard’s car. As Howard drove away, Willingham took out a firearm and began shooting at the

car, striking it multiple times. A jury convicted Willingham of assault with intent to commit

murder, in violation of Michigan Compiled Laws § 750.83, and possession of a firearm during the

commission of a felony, in violation of Michigan Compiled Laws § 750.227b. The trial court

sentenced Willingham as a fourth-offense habitual offender, see Mich. Comp. Laws § 769.12, to

APPENDIX A:

No. 20-1017

-2-

consecutive terms of imprisonment of two years for the felony-firearm conviction and thirty to

ninety years for the assault-with-intent-to-commit-murder conviction. The Michigan Court of

Appeals affirmed, People v. Willingham, No. 331267, 2017 WL 3495609 (Mich. Ct. App. Aug.

15, 2017) (per curiam), and the Michigan Supreme Court denied leave to appeal, People v.

Willingham, 917 N.W.2d 79 (Mich. 2018) (mem.).

In his § 2254 petition, Willingham raised the following five grounds for relief, which he

had raised on direct appeal: (1) there was insufficient evidence to support his convictions, (2) the

admission of Davis’s 911 call and a recording of Davis’s interview with the police violated

Michigan law and Willingham’s rights of confrontation and to a fair trial; (3) the trial court erred

in its scoring of offense variable 6 at sentencing, and counsel was ineffective for failing to object,

(4) he was improperly sentenced as a fourth-offense habitual offender, and counsel was ineffective

for failing to object; and (5) the trial court improperly admitted into evidence a firearm that was

not found in his possession or in his vicinity, and counsel was ineffective for failing to object.

Pursuant to Rule 4 of the Rules Governing § 2254 Cases, the district court reviewed Willingham’s

petition and concluded that his claims lacked merit and that he was not entitled to habeas relief.

The court declined to issue a COA.

To obtain a COA, a petitioner must make “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 issues presented are adequate to deserve

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

Antiterrorism and Effective Death Penalty Act (AEDPA), if a .state court previously adjudicated a

petitioner’s claims on the merits, a district court may not grant habeas relief unless the state court’s

adjudication of the claim resulted in “a decision that was contrary to, or involved an unreasonable

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

States,” or “a decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see Harrington v. Richter,

No. 20-1017

-3-

562 U.S. 86, 100 (2011). Where AEDPA deference applies, this court, in the COA context, must

evaluate the district court’s application of § 2254(d) to determine “whether that resolution was

debatable amongst jurists of reason.” Miller-El, 537 U.S. at 336.

Sufficiency of the Evidence

In his first claim, Willingham argued that there was “insufficient credible evidence” to

support his convictions. In reviewing the sufficiency of evidence, “the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979). The reviewing court may not “reweigh the

evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for that of the jury.”

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). “[A] court may sustain a conviction based

upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656

(6th Cir. 2010). In a federal habeas proceeding, review of a sufficiency claim is doubly deferential:

“First, deference should be given to the trier-of-facf s verdict, as contemplated by Jackson-, second,

deference should be given to the [state appellate court’s] consideration of the trier-of-facf s verdict,

as dictated by AEDPA.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008).

In Michigan, to convict a defendant of assault with intent to commit murder, the

prosecution must prove “(1) an assault, (2) with an actual intent to kill, (3) which, if successful,

would make the killing murder.” People v. Ericksen, 793 N.W.2d 120,122 (Mich. Ct. App. 2010)

(per curiam) (quoting People v. Brown, 703 N.W.2d 230, 236 (Mich. Ct. App. 2005)). Applying

the standard set forth in Jackson, the Michigan Court of Appeals concluded that the evidence was

sufficient to allow a rational jury to convict Willingham of assault with intent to commit murder.

Willingham, 2017 WL 3495609, at *4.

In his habeas petition, Willingham did not dispute the facts as set forth by the Michigan

Court of Appeals. See id. at *3. But he pointed to the fact that he had denied that he was the

shooter and to Officer Benjamin Ingersoll’s testimony that Howard told him that before the shots

were fired at the vehicle, the shooter said, “Drive off, I’m gonna shoot!” Willingham argued that

No. 20-1017

-4-

the only rational inference from this evidence was that, at most, he intended to scare Davis. The

district court explained that, although a view of the evidence in the light most favorable to

Willingham could have allowed a rational jury to infer that Willingham intended only to scare

Davis, that was not the standard. The court concluded that the state appellate court s determination

that, viewing the evidence in the prosecution’s favor as Jackson requires, the evidence was

sufficient to convict Willingham of assault with intent to commit murder was neither contrary to,

nor an unreasonable application of, federal law. Reasonable jurists could not disagree with this

conclusion.

With respect to the felony-firearm count, Willingham argued that the prosecution failed to

prove that he had actual or constructive possession of a firearm because the only evidence offered

was a photograph of him posing with a firearm. “The elements of felony-firearm are that the

defendant possessed a firearm during the commission of, or the attempt to commit, a felony.”

People v. Avant, 597 N.W.2d 864, 869 (Mich. Ct. App. 1999). The Michigan Court of Appeals

found that the State’s evidence was sufficient to convict Willingham of felony-firearm.

Willingham, 2017 WL 3495609, at *8. The court explained that, in addition to the photograph of

Willingham holding a firearm,

Hemphill testified that defendant had a gun at J&B’s and fired multiple rounds at

Howard’s car as he drove away with Davis. Ingersoll testified that Davis told him

during their interview that defendant had fired at her as she was being driven away

from J&B’s in Howard’s car. And Davis reported in her 911 call that defendant

had fired a gun at her.

Id. Reasonable jurists could not debate the district court’s determination that “[t]he appellate

court’s conclusion is well-grounded in the record, as [Willingham] presented it, and consistent

with, not contrary to, clearly established federal law.”

Willingham’s fifth habeas claim was related to his claim challenging his felony-firearm

conviction. He argued that the trial court erred by admitting the gun into evidence because the

prosecutor did not establish that it was ever in his constructive or physical possession. The

Michigan Court of Appeals did not address this argument. The district court, however, considered

the argument and found that it lacked merit. The court explained that Willingham’s argument that

No. 20-1017

-5the prosecutor failed to offer evidence linking him to the firearm “ignore[d] the fact-finder’s power

to make reasonable inferences” and found that, “[b]ased on the testimony of Hemphill and Davis,

the court or the jurors might reasonably infer that the casing found in [the liquor store] parking lot

were casings from the shooting the witnesses described.

The court also noted that the gun was

found during a search of a home where Willingham’s brother was arrested for an unrelated crime

and that Willingham twice told a detective that the gun belonged to him. Reasonable jurists could

not disagree with this assessment. And, to the extent Willingham argued that the firearm was

improperly admitted under state law, such a claim is not cognizable on habeas review. See Estelle

v. McGuire, 502 U.S. 62, 67-68 (1991). Willingham’s insufficient-evidence claims do not deserve

encouragement to proceed further.

II.

Confrontation Clause

At trial, Davis was not available to testify. The State introduced into evidence Davis s call

to 911 during which she stated that Willingham had tried to shoot her in retaliation for an

altercation that she had had with his sister. Officer Ingersoll also testified that, during his interview

of Davis “shortly after the shooting,” Davis told him that she was confronted by Willingham in

the parking lot of the liquor store and that Willingham fired seven to eight shots at Howard’s car

as they were driving away from the store. Willingham, 2017 WL 3495609, at *1. Willingham

contended that this evidence was improperly admitted under Michigan Compiled Laws

§ 768.27c(l), which allows for the admission of statements to law enforcement officers in

domestic-violence cases, and under the present-sense-impression and excited-utterance exceptions

to Michigan’s rule against hearsay. He also argued that admission of this evidence violated his

right of confrontation under the Sixth Amendment.

First, to the extent Willingham argued that Davis’s statements were not admissible under

the Michigan Rules of Evidence, no reasonable jurist could disagree with the district court’s

determination that he failed to state a cognizable claim for habeas relief. See Estelle, 502 U.S. at

67-68. “A state court evidentiary ruling will be reviewed by a federal habeas court only if it were

so fundamentally unfair as to violate the petitioner’s due process rights.” Coleman v. Mitchell,

No. 20-1017

-6244 F.3d 533, 542 (6th Cir. 2001) (emphasis omitted) (citing Seymour v. Walker, 224 F.3d 542,

552 (6th Cir. 2000)). Because the Supreme Court has never held that the introduction of hearsay

testimony violates the Due Process Clause, see Desai v. Booker, 732 F.3d 628, 630-31 (6th Cir.

2013), the district court determined that Willingham failed to show that the state appellate court s

ruling on his claim concerning the admissibility of Davis’s statements was contrary to, or an

unreasonable application of, clearly established federal law. Reasonable jurists could not debate

this determination.

Nor could reasonable jurists debate the district court s determination that the admission of

Davis’s statements did not violate Willingham’s rights under the Confrontation Clause. The

Confrontation Clause bars the “admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the defendant had ... a prior opportunity

for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004). But non-testimonial

statements, including those made in the course of police interrogation for which the primary

purpose “is to enable police assistance to meet an ongoing emergency,” are not subject to the

Confrontation Clause. Davis v. Washington, 547 U.S. 813, 822 (2006). “To determine whether

the ‘primary purpose’ of an interrogation is ‘to enable police assistance to meet an ongoing

emergency,’ which would render the resulting statements nontestimonial, [a court] objectively

evaluate^] the circumstances in which the encounter occurs and the statements and actions of the

parties.” Michigan v. Bryant, 562 U.S. 344, 359 (2011) (citation omitted) (quoting Davis, 547

U.S. at 822).

Relying on Crawford, Davis, and Bryant, the Michigan Court of Appeals concluded that

the admission of Davis’s statements did not violate Willingham’s right of confrontation. With

respect to the 911 call, the court found that the call “was clearly made with the primary purpose of

assisting in an ongoing emergency,” noting that “Davis was so agitated by the events that the trial

court, in listening to the 911 recording, had difficulty understanding her at times, tending to show

that the statements were made ‘in an environment that was not tranquil, or even . . . safe.’”

Willingham, 2017 WL 3495609, at *6 (quoting Davis, 547 U.S. at 827). The court also found that

No. 20-1017

-7 Ingersoll’s interrogation of Davis “was objectively necessary to address an ongoing emergency”

and that therefore the admission of her statements in the interview did not violate the Confrontation

Clause. Id. at *7. The court explained that Davis told Ingersoll that Willingham had shot at her

but did not say why, Ingersoll knew that Willingham was at large and had a gun, Willingham’s

location was unknown, and Ingersoll did not know whether this was an isolated incident or an

ongoing threat to the public. Id. (citing Bryant, 562 U.S. at 364, 370-71, 372, 374, 376). On

habeas review, the district court concluded that, although Willingham offered a different analysis

of the circumstances in his petition, it must defer to the state appellate court’s determination

because Willingham did not contest the reasonableness of the court’s factual determinations and

failed to show that the court’s legal conclusions were contrary to, or unreasonable applications of,

Crawford, Davis, and Bryant. Reasonable jurists could not debate the district court’s resolution

of this claim.

III.

Offense Variable Scoring

In his third claim for relief, Willingham argued that the sentencing court erred in assigning

fifty points under offense variable 6 based on its finding of premeditation. Reasonable jurists

could not disagree with the district court’s decision to deny relief on this claim. Willingham s

challenge to the trial court’s scoring of an offense variable under the state sentencing guidelines

does not state a cognizable habeas claim. See Estelle, 502 U.S. at 67-68; Howard v. White, 76 F.

App’x 52, 53 (6th Cir. 2003). And although due process requires that “a defendant be afforded

the opportunity of rebutting derogatory information demonstrably relied upon by the sentencing

judge, when such information can in fact be shown to have been materially false, Stewart v.

Erwin, 503 F.3d 488, 495 (6th Cir. 2007) (quoting Collins v. Buchkoe, 493 F,2d 343, 345 (6th Cir.

1974)), Willingham did not identify any materially false information that the trial court relied on

in calculating his sentence.

Willingham also argued that trial counsel was ineffective for failing to object to the offense

variable 6 scoring at sentencing. 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

No. 20-1017

-8below 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 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.

Reasonable jurists could not debate the district court’s rejection of Willingham’s claim of

ineffective assistance. Given that the Michigan Court of Appeals concluded that the offense

variable was scored correctly—a ruling to which a habeas court must defer—Willingham cannot

show that an objection by counsel would have been successful. Counsel cannot be deemed

ineffective for failing to raise a meritless objection. See Coley v. Bagley, 706 F.3d 741, 752 (6th

Cir. 2013); Willingham, 2017 WL 3495609, at *7.

IV.

Habitual Offender Enhancement

Willingham’s fourth habeas claim challenged the habitual-offender enhancement applied

at sentencing. Willingham noted that the trial court based the enhancement on a 2010 conviction

for resisting a peace officer, a 2011 conviction for delivery of cannabis, and a 2012 conviction for

possession of cannabis. On appeal, counsel asserted that he could not find in the presentence report

a 2012 conviction for cannabis possession but found a September 2010 plea for misdemeanor

possession of 2.5 grams or less of cannabis and a December 2010 plea for misdemeanor possession

of 2.5 to 10 grams of cannabis, neither of which, he argued, could be used for the habitual-offender

enhancement because they were misdemeanors, and Willingham was not represented by an

attorney during the September 2010 plea. Counsel further asserted that there was no February

2011 conviction for delivery of cannabis but only a conviction for possession of cannabis. Counsel

argued that, because there was no attorney present for that plea, either, it could not serve to enhance

his sentence.

No. 20-1017

-9The Michigan Court of Appeals found that any error on the part of the sentencing court

was harmless because the 2010 conviction for manufacture/delivery of marijuana and the 2010

and 2011 convictions for second-offense and third-offense possession of marijuana were

punishable by more than one year of imprisonment and therefore constituted felonies under

Michigan law. Willingham, 2017 WL 3495609, at *8. The court also noted that Willingham

conceded that his conviction in Illinois for resisting and obstructing a police officer also fit the

definition of “felony” under Michigan criminal law. Id. The court did not address Willingham’s

argument that the convictions should not count towards a sentencing enhancement if he was not

represented by counsel.

The district court explained that it was bound by the state appellate court’s determination

that these prior convictions constituted felonies under Michigan law.

With respect to

Willingham’s argument that guilty pleas entered without counsel cannot count for habitualoffender enhancement purposes, the court noted that “clearly established federal law holds that ‘an

uncounseled misdemeanor conviction, valid under Scott [v. Illinois, 440 U.S. 367 (1979),] because

no prison term was imposed, is also valid when used to enhance a punishment at a subsequent

conviction.’” Reasonable jurists would not disagree with the district court’s assessment that there

was no basis to conclude that the state appellate court’s harmless-error determination was

unreasonable. See Davis v. Ayala, 576 U.S. 257,___, 135 S. Ct. 2187, 2198-99 (2015). Nor could

reasonable jurists debate the denial of Willingham’s claim that counsel was ineffective for failing

to object to the habitual-offender enhancement. As the district court concluded, the state appellate

court’s harmless-error determination precluded any possibility that Willingham could establish

Strickland prejudice. In other words, because the standard for demonstrating harmless error is less

stringent than that for establishing Strickland prejudice, see Kyles v. Whitley, 514 U.S. 419, 43536 (1995); Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009), Willingham necessarily cannot

make a substantial showing of Strickland prejudice. This claim does not deserve encouragement

to proceed further.

No. 20-1017

- 10Accordingly, Willingham’s application for a COA is DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

APPENDIX B:

District Court Opinion and Order Denying Petition for a Writ of Habeas

Corpus, Willingham v. Bauman, No. 2:19-cv-00221

(W.D. Mich., Dec. 4,2019)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

TOSHI EDWARD WILLINGHAM,

Petitioner,

Case No. 2:19-cv-221

Honorable Paul L. Maloney

. CATHERINE BAUMAN,

Respondent.

OPINION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.

Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary

review of the petition to determine whether “it plainly appears from the face of the petition and

any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4,

Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily

dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the

duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes

those petitions which raise legally frivolous claims, as well as those containing factual allegations

that are palpably incredible or false. Carson v. Burke, 178 F.3d 434,436-37 (6th Cir. 1999). After

undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed

because it fails to raise a meritorious federal claim.

APPENDIX B:

Discussion

Factual allegations

Petitioner Toshi Edward Willingham is incarcerated with the Michigan Department

of Corrections at the Alger Correctional Facility (LMF) in Alger County, Michigan. Following a

two-day jury trial in the Berrien County Circuit Court, Petitioner was convicted of assault with

intent to murder (AWIM), in violation of Mich. Comp. Laws § 750.83, and possession of a firearm

during the commission of a felony (felony firearm), in violation of Mich. Comp. Laws § 750.227b.

On December 8, 2015, the court sentenced Petitioner as a fourth habitual offender, Mich. Comp.

Laws § 769.12, to a prison term of 30 to 90 years for AWIM, to be served consecutively to a prison

term of 2 years for felony firearm.

On October 31, 2019, Petitioner timely filed his habeas corpus petition raising five

grounds for relief, as follows:

Petitioner’s Fifth and Fourteenth Amendment rights to due process of law

were violated because the evidence was insufficient to convict him of the

crimes charged.

The trial court committed an error of law and abused its discretion by

admitting evidence of a 911 call and interview with Ashley Davis because

(1) the evidence was not admissible under Mich. Comp. Laws § 768.27(c)

and (2) admission of the evidence violated Petitioner’s right of

confrontation and his right to a fair trial by the admission of testimonial

hearsay in violation of the Fifth, Sixth, and Fourteenth Amendments.

HI.

The trial court erred with regard to the scoring of OV-6; alternatively,

counsel was ineffective for failing to object in violation of the Sixth and

Fourteenth Amendments.

IV.

Petitioner was improperly sentenced as a fourth habitual offender where the

prosecutor failed to properly specify the alleged convictions, any possible

convictions were either misdemeanors or pleas where Petitioner was not

represented by counsel and in the alternative, Petitioner’s counsel was

ineffective for failing to object; in violation of the Sixth and Fourteenth

Amendments.

Petitioner was denied his due process right to a fair trial where the trial court

allowed the admittance of a firearm as an exhibit that was not found in the

possession or vicinity of Petitioner and in the alternative counsel was

ineffective for failing to object or file a motion for the suppression of the

highly prejudicial evidence; in violation of the Fifth, Sixth, and Fourteenth

Amendments.

(Pet., ECF No. 1-1, PagelD. 16-44.)

Petitioner’s convictions stem from an incident on May 11, 2015. The Michigan

Court of Appeals described the incident, and the evidence admitted at Petitioner’s trial, as follows:

On May 11, 2015, Ashley Davis went to J&B’s Liquor Store (J&B’s) with

Demetrious Howard and Kashmir Zahoui. Davis spoke with her cousin, Angela

Hemphill, in J&B’s parking lot. While Davis and Hemphill were talking, Zahoui

told Davis that defendant, whom Davis had dated in the past, was behind her. Davis

wanted to avoid defendant because she had fought with defendant’s sister just a few

days before. She returned to Howard’s car, but defendant confronted her before

she could leave.

Hemphill testified that an argument between defendant and Davis ensued and that

as Howard began driving away, Davis called defendant or his sister a “bitch,” and

in response defendant took out a firearm and started shooting at Howard’s car as it

drove away. Because Davis was unavailable for trial, Benton Harbor Public Safety

Department Officer Benjamin Ingersoll testified to Davis’s account of the events .

as relayed to him during an interview conducted shortly after the shooting.

According to Ingersoll, Davis indicated that she and Howard were leaving J&B’s

parking lot when defendant pulled out a gun and started shooting at Howard’s car.

Howard was also unavailable for trial, but a recording of his preliminary

examination testimony was played for the jury. Howard testified that defendant

was not the man who had shot at his car. Rather, the man who had shot at the car

later approached Howard, identified himself as “Boo Man,” apologized, and

offered to pay for damages to the vehicle. Ingersoll testified, to the contrary, that

when he interviewed Howard about the shooting, Howard stated that an unnamed

person had come up to his car before the shooting and said to him, “Drive off, I’m

gonna shoot,” at which point Howard drove from the parking lot and the person

shot at Howard’s car. Ingersoll also testified that Howard never mentioned a person

named “Boo Man” at any point after the shooting.

Davis called 911 from Howard’s car. A recording of the 911 call was played for

the jury. In the call, Davis stated that defendant had shot at her and that she was

not going back to J&B’s because she did not think that it was safe. Ingersoll met

Davis at her home while another officer went to J&B’s to secure the scene. At

Davis’s home, Ingersoll interviewed Davis and Hemphill, and recorded those

interviews with his body camera. Recordings of those interviews were played for

the jury. Ingersoll also investigated Howard’s car at Davis’s home and confirmed

that four bullets had impacted the car.

The officer who responded to J&B’s canvassed the parking lot and found seven

shell casings. Ingersoll also canvassed J&B’s at a later time and found an eighth

shell casing. The shell casings were sent to the Michigan State Police (MSP) for

analysis. An expert in firearm examinations testified that the casings were from

nine-millimeter luger rounds that required a nine-millimeter caliber luger firearm

to fire.

In an unrelated investigation, Benton Township Police Department Detective Brian

Smit found a gun during a search of the residence where a Daniel Autry was staying.

Shortly before the gun was found, defendant’s brother, Kayjuan Spears, was seen

leaving the home. The gun was sent to the MSP for analysis. An expert in firearm

examinations testified that the gun was a nine-millimeter caliber luger firearm

capable of firing the ammunition from the casings that were recovered at J&B’s.

The expert further concluded, based on his examination of four of the eight casings,

that the ammunition was fired from the firearm that had been recovered by Smit.

The results of the examination of the other four casings were inconclusive.

Defendant was subsequently interviewed by MSP Detective Sergeant Michael

Logan. According to Logan, defendant originally told him that he had purchased

the gun for $150 from a man nicknamed “Little Joe” and that he had sold the gun

to Autry for $300 in May 2015. However, in a subsequent interview, defendant

said that those statements were not true and that he had made them up to protect his

brother, whom he knew was under investigation. Defendant stated that the only

time he had handled the gun was when his brother handed it to him and he posed

for a picture with it. That picture was entered into evidence at defendant’s trial.

(Mich. Ct. App. Op., ECF No. 1-6, PageDD.102-103.)

Before trial, the prosecution moved to admit the recordings of Ashley Davis’s 911

call and her interview with the police under Mich. Comp. Laws § 768.27c. That statute permits

the admission of a statement by a declarant if the following apply:

(a) The statement purports to narrate, describe, or explain the infliction or threat of .

physical injury upon the declarant.

(b) The action in which the evidence is offered under this section is an offense

involving domestic violence.

injury. Evidence of a statement made more than 5 years before the filing of the

current action or proceeding is inadmissible under this section.

(d) The statement was made under circumstances that would indicate the

statement’s trustworthiness.

(e) The statement was made to a law enforcement officer.

Mich. Comp. Laws § 768.27c(l). The statute defines domestic violence to include “causing or

attempting to cause physical or mental harm to a . . . household member . . . [and p]lacing

a. .. household member in fear of physical or mental harm.” Mich. Comp. Laws § 768.27c(5)(b).

The definition of household member, in turn, includes “[a]n individual with whom the person has

or has had a dating relationship.” Mich. Comp. Laws § 768.27c(5)(c)(iv). Davis and Petitioner

had dated.

Petitioner objected arguing that Davis’s statements did not meet any hearsay

exception, were not admissible under the cited statute, and, even if admissible, would violate

Petitioner’s Confrontation Clause rights. The court heard argument on the prosecutor’s motion

and concluded that the statements were admissible under the statute. In addition, the court

determined the statements would have been admissible under the Michigan Rules of Evidence as

excited utterances and present sense impressions. Finally, the court determined that admission of

Davis’s statements did not violate the Confrontation Clause because they were not testimonial;

instead, they were made to assist the police in addressing an ongoing emergency. (Pet., ECF No.

1-1, PageED .26-28.)

At sentencing, Petitioner objected to several errors in the presentence investigation

report (PSIR).. Most significantly, Petitioner contended that he could not be sentenced as a fourth

habitual offender because an Illinois conviction for “resisting and obstructing” was a misdemeanor

and because a predicate offense of marijuana possession relied upon by the prosecutor simply did

not exist. The court concluded that the “resisting and obstructing” offense would be considered a

felony in Michigan and, therefore, counted as a predicate felony for habitual offender status. The

court never ruled on Petitioner’s other objections and, when the court asked counsel whether he

had any other additions or deletions to the PSIR, counsel told the court all concerns had been

addressed.

Petitioner directly appealed his convictions to the Michigan Court of Appeals. In

a brief filed with the assistance of counsel, Petitioner raised the first four habeas issues identified

above. In a supplemental pro per brief, Petitioner raised his fifth habeas issue. By unpublished

opinion issued August 15, 2017, the court of appeals affirmed the trial court.

Petitioner then filed a pro per application for leave to appeal in the Michigan

Supreme Court raising the same five issues he raises in his petition. By order entered September

12, 2018, the supreme court denied leave. (Mich. Order, ECF No. 1-7, PageID.114.) Petitioner

did not file a petition for certiorari in the United States Supreme Court. (Pet., ECF No. 1,

PageID.3.) Instead, Petitioner filed the instant petition.

II.

AEDPA standard

This action is governed by the Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. 104-132,110 Stat. 1214 (AEDPA). The AEDPA “prevents federal habeas ‘retrials’”

and ensures that state court convictions are given effect to the extent possible under the law. Bell

v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a

person who is incarcerated pursuant to a state conviction cannot be granted with respect to any

claim that was adjudicated on the merits in state court unless the adjudication: “(1) resulted in a

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

federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision

that was based upon an unreasonable determination of the facts in light of the evidence presented

in the state court proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to

meet.” Woods v. Donald, 575 U.S.__, 135 S. Ct. 1372, 1376 (2015) (internal quotation omitted).

The AEDPA limits the source of law to cases decided by the United States Supreme

Court. 28 U.S.C. § 2254(d). This Court may consider only the holdings, and not the dicta, of the

Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652,

655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not

consider the decisions of lower federal courts. Lopez v. Smith, 574 U.S. 1, 4 (2014); Marshall v.

Rodgers, 569 U.S. 58, 64 (2013); Parker v. Matthews, 567 U.S. 37, 48-49 (2012); Williams, 529

U.S. at 381-82; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, “clearly

established Federal law” does not include decisions of the Supreme Court announced after the last

adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the

inquiry is limited to an examination of the legal landscape as it would have appeared to the

Michigan state courts in light of Supreme Court precedent at the time of the state-court

adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene,

565 U.S. at 38).

A federal habeas court may issue the writ under the “contrary to” clause if the state

court applies a rule different from the governing law set forth in the Supreme Court’s cases, or if

it decides a case differently than the Supreme Court has done on a set of materially

indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy

this high bar, a habeas petitioner is required to ‘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.’” Woods,

135 S. Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words,

“[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in

their adjudication of a prisoner’s claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal

quotations omitted).

The AF.DPA requires heightened respect for state factual findings. Herbert v. Billy,

160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual, issue made by a state court is

presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1); Dccvis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)

(en banc); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This

presumption of correctness is accorded to findings of state appellate courts, as well as the trial

court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th

Cir. 1989).

Discussion

Admission of the out-of-court statements of Ashley Davis

(habeas issue II)

Petitioner objects to the admission of Ashley Davis’s out-of-court statements. He

contends, first, that the trial court got it wrong—the statements were not admissible under Mich.

Comp. Laws § 768.27c or as exceptions to the hearsay rule under the Michigan Rules of Evidence.

The court of appeals upheld the admission of Davis’s statements under the statute and then

concluded that, even if the statements did not meet the requirements of the hearsay exceptions in

the rules, the statutory admissibility of the statements would render that error harmless.

The extraordinary remedy of habeas corpus lies only for a violation of the

Constitution. 28 U.S.C. § 2254(a). As the Supreme Court explained in Estelle v. McGuire, 502

U.S. 62 (1991), an inquiry whether evidence was properly admitted or improperly excluded under

state law “is no part of the federal court’s habeas review of a state conviction [for] it is not the

province of a federal habeas court to re-examine state-court determinations on state-law

questions.” Id. at 67-68. Rather, “[i]n conducting habeas review, a federal court is limited to

deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Id.

at 68. . Therefore, Petitioner’s claims that the state courts erred in admitting the evidence by

misapplying the state statute or the state rules of evidence is not cognizable on habeas review.

Moreover, state-court evidentiary rulings cannot become cognizable—they cannot

rise to the level of due process violations—unless they offend some principle of justice so rooted

in the traditions and conscience of our people as to be ranked as fundamental. Seymour v. Walker,

224 F.3d 542, 552 (6th Cir. 2000) (quotation omitted); accord Coleman v. Mitchell, 268 F.3d 417,

439 (6th Cir. 2001); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). This approach accords

the state courts wide latitude in ruling on evidentiary matters. Seymour, 224 F.3d at 552 (6th Cir.

2000).

Further, under the AEDPA, the court may not grant relief if it would have decided

the evidentiary question differently. The court may only grant relief if Petitioner is able to show

that the state court’s evidentiary ruling was in conflict with a decision reached by the Supreme

Court on a question of law or if the state court decided the evidentiary issue differently than the

Supreme Court did on a set of materially indistinguishable facts. Sanders v. Freeman, 221 F.3d

846, 860 (6th Cir. 2000). Petitioner has not met this difficult standard.

Petitioner attempts to bring the allegedly improper admission of Ms. Davis’s outof-court statements into the bounds of habeas cognizability by arguing that the admission of the

statements rendered his trial fundamentally unfair, in violation of his due process rights, and

violated his right to confront Ms. Davis as a witness against him. Petitioner’s contention regarding

the due process implications of admitting hearsay evidence fails. “The first and most conspicuous

failing in [the petitioner’s] petition is the absence of a Supreme Court holding granting relief on

his due process theory: that the admission of allegedly unreliable hearsay testimony violates the

Due Process Clause. That by itself makes it difficult to conclude that the state court of appeals

decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States.”5 Desai v. Booker, 732 F.3d 628,

630 (6th Cir. 2013) (quoting 28 U.S.C. § 2254(d)). Petitioner, therefore, has failed to demonstrate

that the Michigan Court of Appeals’ determination of his claim regarding the admissibility of

Davis’s out-of-court statements is contrary to, or an unreasonable application of, clearly

established federal law. Accordingly, he is not entitled to habeas relief.

Petitioner’s claim that he was denied the right to confront Ms. Davis also fails. The

Confrontation Clause of the Sixth Amendment gives the accused the right “to be confronted with

the witnesses against him.” U.S. Const., Am. VI; Pointer v. Texas, 380 U.S. 400, 403-05 (1965)

(applying the guarantee to the states through the Fourteenth Amendment). “The central concern

of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant

by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of

fact.” Maryland v. Craig, 497 U.S. 836, 845 (1990). The Confrontation Clause therefore prohibits

the admission of an out-of-court testimonial statement at a criminal trial Unless the witness is

unavailable to testify and the defendant had a prior opportunity for cross examination. Crawford

v. Washington, 541 U.S. 36, 59 (2004).

The court of appeals expressly relied on Crawford and Michigan v. Bryant, 562

U.S. 344 (2011), and Davis v. Washington, 547 U.S. 813 (2006), in determining whether

Petitioner’s confrontation rights were violated by the admission of Ashley Davis’s 911 call and

interview. (Mich. Ct. App. Op., ECF No. 1-6, PageID.109-110.) Crawford emphasized that outof-court statements raised confrontation concerns only if the statements were testimonial.

However, Crawford “[left] for another day any effort to spell out a comprehensive definition of

‘testimonial’” Crawford, 541 U.S. at 68.

The United States Supreme Court picked up the task of defining which statements

are testimonial, particularly with regard to statements to police, in Davis and Bryant. In Davis, the

court held:

Statements are nontestimonial when made in the course of police interrogation

under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency. They

are testimonial when the circumstances objectively indicate that there is no such

ongoing emergency, and that the primary purpose of the interrogation is to establish

. or prove past events potentially relevant to later criminal prosecution.

547 U.S. at 822 (footnote omitted). The Davis decision resolved two cases: Davis v. Washington

and Hammon v. Indiana. In both cases, the criminal conduct was domestic violence. In appellant

Davis’s case, the prosecutor attempted to introduce into evidence the victim’s statements from a

call with the 911 emergency operator. In appellant Hammon’s case, the prosecutor sought to

introduce an affidavit filled out by the victim at the request of police when they responded to a

domestic violence call. When police responded to the domestic violence call in Hammon’s case,

there was no emergency in progress. The Supreme Court characterized the officer’s questioning

of the victim and the completion of the affidavit as determining “what had happened” as opposed

to “what is happening.” Id. at 830. The Davis court concluded that the call between the 911

emergency operator and victim Michelle McCottry was not testimonial; but, the interview and the

affidavit in the Hammon’s case were testimonial.

In Bryant, the Supreme Court provided additional guidance to assist in drawing the

line between testimonial and nontestimonial statements to police officers as they respond to

emergency calls. The Bryant Court determined that the inquiry into whether the primary purpose

of an interrogation is to enable police assistance to meet an ongoing emergency depends on an

objective evaluation of the circumstances in which the encounter occurs and the statements and

actions of the parties. Byrant, 562 U.S. at 359. The Court explained:

As we suggested in Davis, when a court must determine whether the Confrontation

Clause bars the admission of a statement at trial, it should determine the “primary

purpose of the interrogation” by objectively evaluating the statements and actions

of the parties to the encounter, in light of the circumstances in which the

interrogation occurs. The existence of an emergency or the parties’ perception that

an emergency is ongoing is among the most important circumstances that courts

must take into account in determining whether an interrogation is testimonial

because statements made to assist police in addressing an ongoing emergency

presumably lack the testimonial purpose that would subject them to the requirement

of confrontation. As the context of this case brings into sharp relief, the existence

and duration of an emergency depend on the type and scope of danger posed to the

victim, the police, and the public.

Id. at 370-71 (footnote omitted). Among the circumstances the Bryant Court considered were the

intentions of the police, whether a gun was involved, and whether the assailant had been located

or captured.

The inquiry of the court of appeals into the circumstances surrounding the 911 call

; and the subsequent interview of Ashley Davis, follows precisely the analytical path laid out in

Crawford, Davis, and Bryant.

Defendant additionally argues that the admission of the 911 call and Davis’s

interview with Ingersoll violated his right of confrontation. We disagree. Whether

the admission of evidence “violate[s] a defendant’s Sixth Amendment right of

confrontation is a question of constitutional law that this Court reviews de novo.”

People v. Nunley, 491 Mich 686, 696-697; 821 NW2d 642 (2012).

The protections of the Confrontation Clause apply “only to statements used as

substantive evidence.” People v. Fackelman, 489 Mich 515, 525; 802 NW2d 552

(2011). “In particular, one of the core protections of the Confrontation Clause

concerns hearsay evidence that is ‘testimonial’ in nature.” Nunley, 491 Mich at

697-698, citing Crawford v. Washington, 541 US 36, 51; 124 S Ct 1354; 158 L Ed

2d 177 (2004). Statements “are testimonial when the circumstances objectively

indicate that there is no [ ] ongoing emergency, and that the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.” Davis, 547 US at 822. In contrast, “[statements are

nontestimonial when made in the course of police interrogation under

circumstances objectively indicating that the primary purpose of the interrogation

is to enable police assistance to meet an ongoing emergency.” Id. “To determine

whether the ‘primary purpose’ of an interrogation is ‘to enable police assistance to

meet an ongoing emergency,’ which would render the resulting statements

nontestimonial, [reviewing courts] objectively evaluate the circumstances in which

the encounter occurs and the statements and actions of the parties.” Michigan v.

Bryant, 562US 344, 359; 131 S Ct 1143; 179LEd2d93 (2011) (citationomitted).

In this case, Davis’ s 911 call was clearly made with the primary purpose of assisting

in an ongoing.emergency. Davis called to inform the police of the shooting. Davis

made the call immediately after the shooting occurred. Davis’s call appeared to be

“a call for help against a bona fide physical threat” as opposed to “a narrative report

of a crime absent any imminent danger,” which supports finding that the call was

made to address an ongoing emergency. Davis, 547 US at 827. Moreover, Davis

was so agitated by the events that the trial court, in listening to the 911 recording,

had difficulty understanding her at times, tending to show that the statements were

made “in an environment that was not tranquil, or even (as far as any reasonable

911 operator could make out) safe.” Id. at 827. Consequently, Davis’s 911 call

was not admitted in violation of the Confrontation Clause because the primary

purpose of the call was to objectively seek “to enable police assistance to meet an

ongoing emergency.” Id. at 828.

Similarly, the admission of Davis’s statements to Ingersoll did not violate the

Confrontation Clause. When Ingersoll responded to Davis’s residence, all he knew

was that there were shots fired near J&B’s. When he questioned Davis, she told

him that defendant had shot at her, but she did not say why defendant had done so.

; Ingersoll’s subsequent questioning of Davis was objectively necessary to address

an ongoing emergency. See Bryant, 562 U.S. at 360. Ingersoll was aware that

defendant was still at large and had a gun, see id. at 364 (stating that “the duration

and scope of an emergency may depend in part on the type of weapon employed”),

but was uncertain of defendant’s motivation for shooting at Davis and whether this

was an isolated incident, see id. at 372 (stating that it was significant in that the

police were unsure of whether “the cause of the shooting was a purely private

dispute or that the threat from the shooter had ended” in determining whether there

was an ongoing emergency). Ingersoll was therefore confronted with an ongoing

emergency because he was uncertain whether defendant posed an ongoing risk to

the public. See id. at 370-371 (stating that “die existence and duration of an

emergency depend on the type and scope of danger posed to the victim, the police,

and the public.”). Defendant’s location was unknown when Ingersoll questioned

Davis. See id. at 374 (stating that a finding of an ongoing emergency is supported

if the threat's location remained unknown). Accordingly, Ingersoll’s questions to

Davis were “the exact type of questions necessary to allow the police to “‘assess

the situation, the threat to their own safety, and possible danger to the potential

victim’” and to the public,” id. at 376 (quoting Davis, 547 U.S. at 832), and did not

violate defendant’s right of confrontation.

(Mich. Ct. App. Op., ECFNo. 1-6, PageID.109-110.)

In the petition, Petitioner responds to the state court’s analysis. He reviews the

circumstances of the 911 call and the interview and reaches a different conclusion:

Ms. Davis made the 911 call as she was on her way home in a car and the shooter

was on foot. There was no present emergency. The interview with Ingersoll

occurred over a mile from the scene. Ingersoll testified that he did not feel he was

in danger. Davis’s demeanor during the interview also revealed that it did not

appear that she believed there was an ongoing emergency. Perhaps most telling of

Ms. Davis’ testimonial intent can be found in Petitioner’s counsel noting that during

the police body cam video interview with Angela Hemphill held within minutes of

Ingersoll’s interview with Ms. Davis and admitted at trial; Ashley Davis yelled out

several times “Toshi Edward Willingham.” (TR I at 97-101). The news of an

unrelated shooting had no bearing on whether there was an ongoing emergency in

this matter. The nature of the interview made it clear that the conversation was

geared toward a subsequent prosecution. The trial judge mentions that there were

bullet holes in the car. Petitioner submits that this information was not gleaned

until after the interview and is irrelevant to a determination of whether there was

an emergency situation.

(Pet., ECF No. 1-1, PageID.31-32.) Essentially, Petitioner asks this Court to independently decide

whether the objective circumstances surrounding the 911 call and the interview support the

determination that the statements are not testimonial. Even if this Court agreed with Petitioner’s

analysis of the circumstances, however, it could not grant relief. This Court must defer to the state

court’s decision unless the state court’s factual determinations are unreasonable or its decision is

contrary to, or an unreasonable application of, clearly established federal law.

Although Petitioner would prefer that the testimonial/nontestimonial determination

were based on facts other than the facts upon which the court of appeals relied—facts that favor

his position—he does not contest the reasonableness of the court of appeals’ factual

determinations. Moreover, Petitioner has not shown, and quite frankly cannot show, that the court

of appeals’ legal determinations are contrary to, or unreasonable applications of, Crawford, Davis,

and Bryant, the clearly established federal law on this issue. Indeed, the court of appeals made its

legal determinations because the circumstances surrounding Ms. Davis’s 911 call are a lot like the

circumstances surrounding the 911 call of Michell McCottry in Davis, and the circumstances

surrounding Ms. Davis’s interview are a lot like the circumstances surrounding the police

interview with the victim in Bryant. Petitioner, therefore, has failed to meet his burden with respect

to this issue and he is not entitled to habeas relief.

Sufficiency of the evidence (habeas issue I)

Petitioner contests whether there was sufficient evidence to convict him of AWIM.

Specifically, Petitioner argues that the evidence of his intent to murder was insufficient:

Recognizing that Mr. Willingham denied that he was the shooter, the evidence at

trial was insufficient to support an inference that he had the specific intent to

murder. Officer Ingersoll stated that Demetrius Howard told him that the shooter

said “Drive off, I’m gonna shoot!” They drove off and his vehicle was hit by

numerous bullets. (TR 2 at 36 ). The only rational inference from the evidence

presented was that, at most, Mr. Willingham intended to scare Ms. Davis. It is

. doubtful that the evidence even supported a conviction for assault with intent to do

great bodily harm less than murder. The evidence certainly did not support the

conviction for assault with intent to commit murder. The conviction must be

vacated. .

(Pet’r’s Appeal Br., ECF No. 1-2, PageID.62.)

A § 2254 challenge to the sufficiency of the evidence is governed by the standard

set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979), which is

“whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” This

standard of review recognizes the trier of fact’s responsibility to resolve reasonable conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts. Id. Issues of credibility may not be reviewed by the habeas court under this standard. See

Herrera v. Collins, 506 U.S. 390, 401-02 (1993). Rather, the habeas court is required to examine

the evidence supporting the conviction, in the light most favorable to the prosecution, with specific

reference to the elements of the crime as established by state law. Jackson, 443 U.S. at 324 n.16;

Allen v. Redman, 858 F.2d 1194, 1196-97 (6th Cir. 1988).

. .

The Jackson v. Virginia standard “gives full play to the responsibility of the trier of

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Moreover, because both

the Jackson standard and AEDPA apply to Petitioner’s claims, “the law commands deference at

two levels in this case:

First, deference should be given to the trier-of-fact’s verdict, as

contemplated by Jackson; second, deference should be given to the Michigan Court of Appeals

consideration of the trier-of-fact’s verdict, as dictated by AEDPA.” Tucker v. Palmer, 541 F.3d

652, 656 (6th Cir. 2008). This standard erects “‘a nearly insurmountable hurdle’” for petitioners

who seek habeas relief on sufficiency-of-the-evidence grounds. Davis v. Lafler, 658 F.3d 525,

534 (6th Cir. 2008) (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).

The Michigan Court of Appeals applied the following standard when it rejected

Petitioner’s sufficiency challenge:

“Challenges to the sufficiency of the evidence are reviewed de novo.” People v.

Cline, 276 Mich App 634, 642; 741 NW2d 563 (2007). To determine whether the

prosecutor has presented sufficient evidence to sustain a conviction, we review the

evidence in the light most favorable to the prosecutor and determine whether a

rational trier of fact could find the defendant guilty beyond a reasonable doubt.”

People v. Smith-Anthony, 494 Mich 669, 676; 837 NW2d 415 (2013) (citation and

quotation marks omitted).

(Mich. Ct. App. Op., ECF No. 1-6, PageID.104.) Although the court of appeals relied on state

authorities, the standard it applied is identical to the Jackson standard.

The court of appeals then, as Jackson commands, reviewed the evidence against

the elements of the crime in a light that favored the prosecutor:

“The elements of assault with intent to commit murder are (1) an assault, (2) with

an actual intent to kill, (3) which, if successful, would make the killing murder.”

People v. Ericksen, 288 Mich App 192, 195-196; 793 NW2d 120 (2010) (citation

and quotation marks omitted). In this case, defendant challenges the sufficiency of

the evidence showing his actual intent to kill. “[A]n intent to kill for purposes of

[AWIM] may not be proven by an intent to inflict great bodily harm or a wanton

and wilful disregard of the likelihood that the natural tendency of the acts will likely

cause death or great bodily harm.” People v. Brown, 267 Mich App 141, 150; 703

NW2d 230 (2005) (citation and quotation marks omitted). But a “[defendant’s

intent [can] be inferred from any facts in evidence,” Ericksen, 288 Mich App at

196, including “the use of a deadly weapon,” People v. Henderson, 306 Mich App

1, 11; 854 NW2d 234 (2014), as well as

the nature of the defendant’s acts constituting the assault; the temper or

disposition of mind with which they were apparently performed, whether

the instrument and means used were naturally adapted to produce death,

his conduct and declarations prior to, at the time, and after the assault, and

all other circumstances calculated to throw light upon the intention with

which the assault was made. [Brown, 267 Mich. App. at 149 n 5 (citations

and quotation marks omitted).]

“Because of the difficulty of proving an actor’s state of mind, minimal

circumstantial evidence is sufficient to establish a defendant’s intent to kill.”

People v. Unger, 278 Mich App 210, 231; 749 NW2d 272 (2008).

In this case, evidence was presented that Davis had attempted to avoid a

confrontation with defendant. Before Davis could leave the area, however,

defendant confronted her, pulled out a handgun (a dangerous weapon, see

Henderson, 306 Mich App at 11), and discharged the weapon in Davis’s direction.

Defendant thus used “an instrument and means” that were “naturally adapted to

produce death.” Brown, 267 Mich App at 149 n 5. Defendant fired eight times,

hitting the vehicle multiple times, which supports the inference that he intended to

kill someone in the car. Id. Testimony from several witnesses supports the

conclusion that Davis had had a serious fight with defendant’s sister in the days

before the shooting and that defendant’s actions in approaching Davis may have

been motivated by his ill will towards her. See Brown, 267 Mich App at 149 n 5.

Viewing this evidence in the light most favorable to the prosecution, SmithrAnthony, 494 Mich, at 676, taking into consideration all reasonable inferences

arising from the evidence, Gonzalez, 468 Mich at 640—641, resolving all conflicts

in favor of the prosecution, People v. Kanaan, 278 Mich App 594, 619; 751 NW2d

57 (2008), and deferring to the jury’s assessment of the weight of the evidence and

the credibility of the witnesses, Hardiman, 466 Mich at 428, a rational trier of fact

could have found sufficient circumstantial evidence, Unger, 278 Mich App at 231,

to conclude that defendant intended to kill Davis.

(Mich. Ct. App. Op., ECF No. 1-6, PagelD.105-106.)

Petitioner’s only response to the court of appeals’ analysis is to reiterate his court

of appeals’ argument: “the only rational inference from the evidence presented was that, at most,

Mr. Willingham intended to scare Ms. Davis.” (Pet’r’s Appeal Br., ECF No. 1-2, PageID.62.)1 It

may well be true that, construing the evidence in a light that favors Petitioner, the jury could have

rationally inferred that he only intended to scare Ms. Davis. That is not the standard. The evidence

identified by the court of appeals, viewed in a light that favors the prosecutor, certainly also

supports the reasonable inference that Petitioner intended to kill Ms. Davis. Therefore, the court

. of appeals determination that there was sufficient evidence to support the verdict that Petitioner

was guilty of AWIM is neither contrary to, nor an unreasonable application of, Jackson.

Accordingly, Petitioner is not entitled to habeas relief.

Premeditation (habeas issue HI)

Petitioner next contends that his sentence is invalid because the trial court erred in

scoring the sentencing guidelines. Offense variable 6 requires the trial court to assess 50 points if

the offender had a premeditated intent to kill and 25 points if the offender had an unpremeditated

intent to kill. (Pet’r’s Br., ECF No. 1-1, PageID.33.) The trial court assessed 50 points for

Petitioner. Petitioner asserts that “[a]t most, the shooting emanated from a heated argument, which

negates a finding of premeditation.” (Id., PageID.34.) Petitioner’s argument boils down to a claim

that there was insufficient evidence of his premeditated intent to kill.

“[A] federal court may issue the writ to a state prisoner ‘ only on the ground that he

is in custody in violation of the Constitution or laws or treaties of the United States.’” Wilson v.

Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). A habeas petition must “state facts

that point to a ‘real possibility of constitutional error.’” Blackledge v. Allison, 431 U.S. 63, 75 n.7

(1977) (quoting Advisory Committee Notes on Rule 4, Rules Governing Habeas Corpus Cases).

The federal courts have no power to intervene on the basis of a perceived error of state law. Wilson,

The petition specifically refers the Court to Petitioner’s court of appeals brief. (Pet., ECF No. 1, PageID.6.)

562 U.S. at 5; Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 62, 6768 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984). Claims concerning the improper application

of sentencing guidelines are state-law claims and typically are not cognizable in habeas corpus

proceedings. See Hutto v. Davis, 454 U.S. 370, 373-74 (1982) (federal courts normally do not

review a sentence for a term of years that falls within the limits prescribed by the state legislature);

Austin v. Jackson, 213 F3d 298, 301-02 (6th Cir. 2000) (alleged violation of state law with respect

to sentencing is not subject to federal habeas relief).

Nonetheless, a sentence challenge can rise to the level of a constitutional violation.

For example, a sentence may violate due process if it is based upon material “misinformation of

constitutional magnitude.” Roberts v. United States, 445 U.S. 552, 556 (1980), quoted in Koras

v. Robinson, 123 F. App’x 207, 213 (6th Cir. 2005); see also United States v. Tucker, 404 U.S.

443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 741 (1948). To prevail on such a claim, the

petitioner must show (1) that the information before the sentencing court was materially false, and

(2) that the court relied on the false information in imposing the sentence. Tucker, 404 U.S. at

447; United States v. Polselli, 1A1 F.2d 356, 358 (6th Cir. 1984); Koras, 123 F. App’x at 213

(quoting United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988)). A sentencing court

demonstrates actual reliance on misinformation when the court gives “explicit attention” to it,

“found[s]” its sentence “at least in part” on it, or gives “specific consideration” to the information

before imposing sentence. Tucker, 404 U.S. at 444, 447.

The court of appeals explained the factual foundation for the scoring of offense

variable 6 as follows:

A jury’s decision that a defendant had the requisite intent to kill for purposes of

AWIM does not reach the issue of whether the intent was premeditated. People v.

Steanhouse, 313 Mich App 1, 41; 880NW2d 297 (2015), affd in part, rev’d in part

(2017). “Premeditation, which requires sufficient

on other grounds---- Mich

time to permit the defendant to take a second look, may be inferred from the

circumstances surrounding the killing.” People v. Coy, 243 Mich App 283, 315;

620 NW2d 888 (2000). “[B]ut the inferences must have support in the record and

cannot be arrived at by mere speculation.” Steanhouse, 313 Mich App at 41.

Factors that may be considered in determining premeditation include “(1) the

previous relationship between the defendant and the victim; (2) the defendant’s

actions before and after the crime; and (3) the circumstances of the killing itself,

including the weapon used and the location of the wounds inflicted.” Id. at 40-41

(citation and quotation marks omitted).

Evidence was presented that, in the days leading up to the shooting, Davis had been

in a serious fight with defendant’s sister. As a result, when Davis became aware of

. defendant’s presence at J&B ’ s, she attempted to leave. However, rather than letting

Davis leave, defendant confronted her. Defendant was carrying a firearm when he

approached Davis, and he discharged the firearm eight times in her direction, both

of which support a finding of premeditation. See Coy, 243 Mich App at 315. Based

on all the facts and circumstances, there was sufficient evidence to conclude that

defendant acted with premeditation, and the trial court properly assessed 50 points

for OV 6. Hardy, 494 Mich, at 438.

(Mich. Ct. App. Op., ECF No. 1-6, PageID.110-111.) Petitioner does not challenge as false any

of the facts upon which the appellate court relied. Instead, he argues that the court of appeals

should have concluded from other facts that his intent to kill was not premeditated. Petitioner’s

argument raises only a state law issue that is not cognizable on habeas review.

Fourth habitual offender (habeas issue IV)

Petitioner next claims his sentence as a fourth habitual offender was improper

because he did not have three prior felonies. Petitioner notes that the trial court relied on: (1) a

September 12, 2012, conviction in Dupage County, Illinois, for possession of marijuana; (2) a

February 28, 2011, conviction in Dupage County for delivery of marijuana; and (3) a September

6, 2010, conviction in Dupage County for resisting a peace officer. There was some dispute as to

whether the “resisting” offense would have been a felony in Michigan. The trial court resolved

that dispute in favor of the prosecutor and, thereafter, Petitioner’s other challenges to the predicate

offenses were ignored.

In Petitioner’s brief on appeal, counsel outlined the other challenges to the predicate

felonies. Counsel indicated that he was never able to find a September 12, 2012, conviction for

possession of marijuana. He found a September 15, 2010, guilty plea for possession of 2.5 grams

or less of marijuana, which he argued was not to be counted because (1) the crime would be a

misdemeanor in Michigan and (2) Petitioner did not have an attorney. He also found a December

10, 2010, guilty plea for possession of 2.5 to 10 grams of marijuana. That offense too, counsel

argued, was .a misdemeanor in Michigan. Finally, counsel was unable to find a February 28, 2011,

conviction for delivery of marijuana. Instead, for that date, he found a guilty plea for possession

of marijuana for which Petitioner was sentenced to 18 months in prison. Counsel indicated that

conviction also should not count because no attorney was present. Petitioner, therefore, has

identified a sufficient number of offenses; he simply claims they do not count because they are

misdemeanors or because his pleas were entered without counsel.

The court of appeals resolved Petitioners challenges as follows:

Defendant first argues that the trial court relied on a non-existent possession of

marijuana conviction from September 12, 2012. A review of defendant’s PSIR

reveals, however, that on February 28, 2011 defendant pleaded to a charge of

possessing 30 to 500 grams of marijuana, and that he was sentenced to 2 years’

probation. That same charge indicates that, on September 12, 2012, defendant

violated his probation and was subsequently sentenced to 18 months’

imprisonment. There is no other reference to September 12, 2012 in defendant’s

PSIR. Therefore, it appears that, for habitual offender purposes, two of the listed

felonies (possession of marijuana and a probation violation attendant to it) were

actually one.

Nonetheless, defendant’s PSER reveals a 2010 conviction for manufacture/delivery

of marijuana, and subsequent 2010 and 2011 convictions for second-offense and

third-offense possessions of marijuana. All of these convictions fit the definition

of a “felony” under the Code of Criminal Procedure, as they were punishable by

imprisonment for more than one year. See MCL 761.1(g); People v. Smith, 423

Mich 427, 445; 378 NW2d 384 (1985). And defendant admits on appeal that his

conviction in Illinois for resisting and obstructing a police officer also fits this

definition. Defendant thus was convicted of at least three prior felonies for

purposes of the habitual offender statute, and any error was harmless. See People

v. McAllister, 241 Mich App 466, 473; 616 NW2d 203, 207 (2000), remanded on

other grounds 465 Mieh 884 (2001) (“However, when the alleged inaccuracies

would have no determinative effect on the sentence, the court’s failure to respond

may be considered harmless error.”).

(Mich. Ct. App. Op., ECF No. 1-6, PageED.lll.) Petitioner does not respond to the court of

appeals determination. Instead, he reiterates the argument from his direct appeal—the argument

rejected by the court of appeals—that the other offenses would not count because they are

misdemeanors or because pleas were entered without counsel.

“State courts’ harmless-error determinations are adjudications on the merits, and

therefore federal courts may grant habeas relief only where those determinations are objectively

unreasonable. O’Neal v. Balcarcel, 933 F.3d 618. 624 (6th Cir. 2019) (citing Davis v. Ayala, 135

S. Ct. 2187, 2198-99 (2015)). Whether or not an offense is a felony and, thus, counted under the

habitual offender statute is a matter of state law. Here, the Michigan Court of Appeals concluded

the three offenses were felonies under Michigan law. The decision of the state courts on a statelaw issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983). The

Sixth Circuit recognizes ‘“that a state court’s interpretation of state law, including one announced

on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.’”

Stumpf v. Robinson, 722 F.3d 739, 746 n.6 (6th Cir. 2013) (quoting Bradshaw, 546 U.S. at 76).

See also Thomas v. Stephenson, 898 F.3d 693,700 n.l (6th Cir. 2018) (same). Thus, this Court is

bound by the state appellate court’s determinations that the three offenses are felonies.

The state court did not specifically address Petitioner’s contention that guilty pleas

entered without counsel do not count. The court appeared to simply ignore it. Petitioner’s

contention that guilty pleas without counsel do not count is based on People v. Crawford, 296

N.W.2d 244 (Mich. Ct. App. 1980). Petitioner misreads the holding of that case. Crawford does

not hold that convictions without counsel cannot be counted, it holds that convictions without

counsel do not count if the defendant has not been advised of, and intelligently waived, his rights.

Id. at 245-46. Petitioner has not claimed that he was not advised of his rights or that he did not

intelligently waive them. Accordingly, he offers no basis, under Crawford, to not count the

offenses identified by the court of appeals. Indeed, clearly established federal law holds that “an

uncounseled misdemeanor conviction, valid under Scott [v. Illinois, 440 U.S. 367 (1979),] because

no prison term was imposed, is also valid when used to enhance a punishment at a subsequent

conviction.” Nichols v. United States, 511 U.S. 738, 749 (1994). Thus, Petitioner has offered.no

basis, and there appears to be no basis, to conclude that the appellate court’s harmless error

determination is unreasonable. Therefore, he is not entitled to habeas relief on this claim.

Admission of the gun (habeas issue V)

Petitioner’s fifth habeas ground is taken from his pro per brief on appeal. In his

appeal brief, he makes two distinct arguments in connection with the issue. First, he contends the

trial court should not have admitted into evidence a firearm because the prosecution failed to prove

that the particular firearm admitted was ever in his possession. Second, Petitioner argues that the

prosecutor failed to prove the felony firearm charge.

The court of appeals focused its analysis on the second of Petitioner’s challenges:

“The elements of felony-firearm are that the defendant possessed a firearm during

the commission of, or the attempt to commit, a felony.” People v. Avant, 235 Mich

App. 499, 505; 597 NW2d 864 (1999). Defendant argues that there was insufficient

evidence to prove that defendant had actual or constructive possession of the

handgun that was admitted at trial. Defendant argues that the only evidence linking

him to the handgun was the photograph of him holding it. However, Hemphill

testified that defendant had a gun at J&B’s and fired multiple rounds at Howard’s

car as he drove away with Davis. Ingersoll testified that Davis told him during their

interview that defendant had fired at her as she was being driven away from J&B’s

in Howard’s car. And Davis reported in her 911 call that defendant had fired a gun

at her. Viewing this evidence in the light most favorable to the prosecution, SmithAnthony, 494 Mich at 676, there was sufficient evidence for the jury to conclude

that defendant possessed a firearm during the commission of the felony for which

he was convicted.

(Mich. Ct. App. Op., ECF No. 1-6, PageID.112.) As was the case with the premeditation issue,

the court of appeals, as Jackson commands, reviewed the evidence against the elements of the

crime in a light that favored the prosecutor. The appellate court’s conclusion is well-grounded in

the record, as Petitioner has presented it, and consistent with, not contrary to, clearly established

federal law.

The court of appeals did not directly address Petitioner’s contention that the

prosecutor did not sufficiently link the gun to him to make the gun admissible in his trial.

Nonetheless, the contention has not merit. Petitioner ignores the fact-finder’s power to make

reasonable inferences. Petitioner reports that Officer Benjamin Ingersoll testified that 8 spent shell

casings were found in the BJ’s parking lot. (Pet., ECF No. 1-1, PageED.18.) Petitioner reports that

Detective Jonathan Wickwire testified that 4 of the 8 fired cartridges had been fired from the gun

that was introduced at Petitioner’s trial; the other 4 did not permit a conclusive determination of

that issue. (Id., PageID.21.) Petitioner reports that Officer Brian Smit testified that the gun was

found during the search of a home where Petitioner’s brother was arrested on an unrelated crime.

(Id., PageID.20.) Petitioner reports that Detective Wickwire testified that Petitioner acknowledged

in two of the stories he told Wickwire that the gun was Petitioner’s. (Id., PageID.21.)

Based on the testimony of Hemphill and Davis, the court or the jurors might

reasonably infer that the casings found in BJ’s parking lot were casings from the shooting the

witnesses described. According to Detective Wickwire, at least 4 of those casings were fired from

the gun that was introduced into evidence at Petitioner’s trial and Petitioner twice acknowledged

to Wickwire that the gun was Petitioner’s. Although the admissibility to the gun is entirely a state

law issue, any claim that no adequate foundation was laid for its admission is plainly meritless.

Petitioner has failed to demonstrate that the court of appeals rejection of his

challenge to the felony firearm conviction is contrary to, or an unreasonable application of, clearly

established federal law. Accordingly, Petitioner is not entitled to habeas relief on this claim.

Ineffective assistance of counsel (habeas issues HI, IV, and V)

In Petitioner’s final three habeas issues, he offers the alternative claim that his trial.

counsel rendered ineffective assistance for failing to raise the claims. In Strickland v. Washington,

466 U.S. 668 (1984), the Supreme Court established a two-prong test by which to evaluate claims

of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the .

petitioner must prove:

(1) that counsel’s performance fell below an objective standard of

reasonableness; and (2) that counsel’s deficient performance prejudiced the defendant resulting in

an unreliable or fundamentally unfair outcome. Id. at 687. A court considering a claim of

ineffective assistance must “indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Id. at 689. The defendant bears the burden of

overcoming the presumption that the challenged action might be considered sound trial strategy.

Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also Nagi v. United States, 90 F.3d

130,135 (6th Cir. 1996) (holding that counsel’s strategic decisions were hard to attack). The court

must determine whether, in light of the circumstances as they existed at the time of counsel’s

actions, “the identified acts or omissions were outside the wide range of professionally competent

assistance.” Strickland, 466 U.S. at 690. Even if a court determines that counsel’s performance

was outside that range, the defendant is not entitled to relief if counsel’s error had no effect on the

judgment. Id. at 691.

Moreover, as the Supreme Court repeatedly has recognized, when a federal court

reviews a state court’s application of Strickland under § 2254(d), the deferential standard of

Strickland is “doubly” deferential. Harrington v. Richter, 562 U.S. 86,105 (2011) (citing Knowles

v. Mirzayance, 556 U.S. Ill, 123 (2009)); see also Burtv. Titlow, 571 U.S. 12, 13 (2013); Cullen

v. Pinholster, 563 U.S. 170, 190 (2011); Premo v. Moore, 562 U.S. 115, 122 (2011). In those

circumstances, the question before the habeas court is “whether there is any reasonable argument

that counsel satisfied Strickland's deferential standard.” Id.; Jackson v. Houk, 687 F.3d 723, 74041 (6th Cir. 2012) (stating that the “Supreme Court has recently again underlined the difficulty of

prevailing on a Strickland claim in the context of habeas and AEDPA . . . .”) (citing Harrington,

562 U.S. at 102).

The court of appeals rejected Petitioner’s ineffective assistance claim regarding

guidelines scoring because “the trial court properly assessed 50 points for OV6 .. . [therefore] and

objection would have been meritless.” (Mich. Ct. App. Op., ECF No. 1 -6, PageED. 111.) The court

of appeals rejected Petitioner’s ineffective assistance claim regarding the habitual offender

sentence enhancement because “any error was harmless.. . . [therefore] there is not a reasonable

probability that the outcome would have been different.” (Id., PageID.111-112.) Finally, the court

of appeals rejected Petitioner’s ineffective assistance claim regarding counsel’s failure to move to

suppress admission of the handgun “because any such objection would have been meritless.” (Id.,

PageID.112.)

“Omitting meritless arguments is neither professionally unreasonable nor

prejudicial.” Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013). The state court determinations

that a guidelines scoring challenge has no merit and that a motion to suppress would have no merit

are state court determinations of state law. Such determinations bind this Court, see Stumpf, 722

F.3d at 746 n.6, and, under Coley, dictate the result of Petitioner’s ineffective assistance claims as

well.

The court of appeals determination that any error regarding the habitual offender

sentence enhancement was harmless also dictates the result of Petitioner’s ineffective assistance

claim arising from the enhancement—but for a different reason. The appellate court’s decision

that the error was harmless because it was not outcome determinative, a determination to which

this Court must defer for the reasons stated above, is the equivalent of a determination that the

error was harmless under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). Kyles v. Whitley, 514

U.S. 419,435-436 (1995). The determination that any error was harmless under Brecht necessarily

means that it is not prejudicial under Strickland. See Kyles v. Whitley, 514 U.S. 419, 436 (1995)

(explaining that the United States v. Agurs, 427 U.S. 97 (1976), materiality standard, later adopted

as the prejudice standard for ineffective assistance of counsel claims, requires the habeas petitioner

to make a greater showing of harm than is necessary to overcome the harmless error test of Brecht)-,.

see also Wright v. Burt, 665 F. App’x 403, 410 (6th Cir. 2016) (“[0]ur previous analysis of

Strickland prejudice applies to the assessment of whether the Confrontation Clause violation was

harmless error under Brecht.”)-, Bell v. Hurley, 97 F. App’x 11, 17 (6th Cir. 2004) (“Because we

find the error to be harmless [under Brecht] Bell cannot meet the prejudice requirement of

Strickland....”); Kelly v. McKee, No. 16-1572, 2017 WL 2831019 at *8 (6th Cir. Jan. 24, 2017)

(“Because Kelly suffered harmless error [under Brecht] at best, he cannot establish that he suffered

prejudice [under Strickland].”). Thus, once the Court defers to the determination that any error

was not outcome determinative, it necessarily follows that Petitioner cannot establish prejudice

under Strickland for counsel’s failure to raise the issue.

For all of these reasons, Petitioner has failed to show that the court of appeals

rejection of his ineffective assistance of counsel claims is contrary to, or an unreasonable

application of, Strickland. Thus he is not entitled to habeas relief on those claims.

IV.

Certificate of Appealability

Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of

appealability should be granted. A certificate should issue if Petitioner has demonstrated a

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

The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of

certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001) (per curiam).

Rather, the district court must “engage in a reasoned assessment of each claim” to determine

whether a certificate is warranted. Id. Each issue must be considered under the standards set forth

by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467.

Consequently, this Court has examined each of Petitioner’s claims under the Slack standard.

Under Slack, 529 U.S. at 484, to warrant a grant of the certificate, “[t]he petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Id. “A petitioner satisfies this standard by demonstrating that . . .

jurists could conclude the issues presented are adequate to deserve encouragement to proceed

. further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the Court

may not conduct a full merits review, but must limit its examination to a threshold inquiry into the

underlying merit of Petitioner’s claims. Id.

The Court finds that reasonable jurists could not conclude that this Court’s

dismissal of Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner

a certificate of appealability. Moreover, although Petitioner has failed to demonstrate that he is in

custody in violation of the Constitution and has failed to make a substantial showing of the denial

of a constitutional right, the Court does not conclude that any issue Petitioner might raise on appeal

would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962).

Conclusion

The Court will enter a judgment dismissing the petition and an order denying a

certificate of appealability.

/s/ Paul L. Maloney

Paul L. Maloney

United States District Judge

Dated: December 4, 2019

wrMlm

By.

Deputy Clerk

U.S. District Court

Western Disi.

Date I&LEMR&

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

TOSHI EDWARD WILLINGHAM,

Petitioner,

Case No. 2:19-cv-221

Honorable Paul L. Maloney

CATHERINE BAUMAN,

Respondent.

JUDGMENT

In accordance with the opinion entered this day:

IT IS ORDERED that the petition for writ of habeas corpus is DISMISSED

WITH PREJUDICE under Rule 4 of the Rules Governing § 2254 Cases for failure to raise a

meritorious federal claim.

Dated:

December 4, 2019

/s/ Paul L. Maloney

Paul L. Maloney

United States District Judge

Deputy Clerk

U.S. District Court

Western Dist. at Michigan

nrnt° )<$) F)}($.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

TOSHI EDWARD WILLINGHAM,

Petitioner,

Case No. 2:19-cv-221

Honorable Paul L. Maloney

CATHERINE BAUMAN,

Respondent.

ORDER

In accordance with the opinion entered this day:

IT IS ORDERED that a certificate of appealability is DENIED.

Dated:

December 4, 2019

/s/ Paul L. Maloney

Paul L. Maloney

United States District Judge

Certified as a True Copy

m (Jv}f/\(yr}

Deputy Clerk

U.S. District Court

Western Dist. of Michigan

Date

APPENDIX C:

Michigan Supreme Court Order Denying Leave to Appeal on Direct

Appeal of State Court Judgment, People v. Willingham, No. 156571

(Mich., Sep. 12, 2018)

Order

Michigan Supreme Court

Lansing, Michigan

Stephen J. Markman,

Chief Justice

September 12, 2018

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Kurds T. Wilder

Eliaabeth T. Clement,

Justices

156571

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

SC: 156571

COA: 331267

Berrien CC: 2015-002016-FC

TOSHI EDWARD WILLINGHAM,

Defendant-Appellant.

On order of the Court, the application for leave to appeal the August 15, 2017

judgment of the Court of Appeals is considered, and it is DENIED, because we are not

persuaded that the questions presented should be reviewed by this Court.

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

September 12,2018

a0905

Clerk

APPENDIX C:

APPENDIX D:

Michigan Court of Appeals Opinion Affirming Convictions and

Sentence on Direct Appeal of State Court Judgment, People v.

Willingham, No. 331267 (Mich. Ct. App., Aug. 15, 2017)

STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

August 15, 2017

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

No. 331267

Berrien Circuit Court

LC No. 2015-002016-FC

TOSHI EDWARD WILLINGHAM,

Defendant-Appellant.

Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

Per Curiam.

Defendant appeals by right his convictions, following a jury trial, of assault with intent to

commit murder (AWIM), MCL 750.83, and possession of a firearm during the commission of a

felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a fourth-offense

habitual offender, MCL 769.12, to consecutive prison terms of 2 years for felony-firearm and 30

to 90 years for AWIM. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On May 11, 2015, Ashley Davis went to J&B’s Liquor Store (J&B’s) with Demetrious

Howard and Kashmir Zahoui. Davis spoke with her cousin, Angela Hemphill, in J&B’s parking

lot. While Davis and Hemphill were talking, Zahoui told Davis that defendant, whom Davis had

dated in the past, was behind her. Davis wanted to avoid defendant because she had fought with

defendant’s sister just a few days before. She returned to Howard’s car, but defendant

confronted her before she could leave.

Hemphill testified that an argument between defendant and Davis ensued and that as

Howard began driving away, Davis called defendant or his sister a “bitch,” and in response

defendant took out a firearm and started shooting at Howard’s car as it drove away. Because

Davis was unavailable for trial, Benton Harbor Public Safety Department Officer Benjamin

Ingersoll testified to Davis’s account of the events as relayed to him during an interview

conducted shortly after the shooting. According to Ingersoll, Davis indicated that she and

Howard were leaving J&B’s parking lot when defendant pulled out a gun and started shooting at

Howard’s car.

Howard was also unavailable for trial, but a recording of his preliminary examination

testimony was played for the jury. Howard testified that defendant was not the man who had

-1-

APPENDIX D:

shot at his car. Rather, the man who had shot at the car later approached Howard, identified

himself as “Boo Man,” apologized, and offered to pay for damages to the vehicle. Ingersoll

testified, to the contrary, that when he interviewed Howard about the shooting, Howard stated

that an unnamed person had come up to his car before the shooting and said to him, “Drive off,

I’m gonna shoot,” at which point Howard drove from the parking lot and the person shot at

Howard’s car. Ingersoll also testified that Howard never mentioned a person named “Boo Man”

at any point after the shooting.

Davis called 911 from Howard’s car. A recording of the 911 call was played for the jury.

In the. call, Davis stated that defendant had shot at her and that she was not going back to J&B’s

because she did not think that it was safe. Ingersoll met Davis at her home while another officer

went to J&B’s to secure the scene. At Davis’s home, Ingersoll interviewed Davis and Hemphill,

and recorded those interviews with his body camera. Recordings of those interviews were

played for the jury. Ingersoll also investigated Howard’s car at Davis’s home and confirmed that

four bullets had impacted the car.

The officer who responded to J&B’s canvassed the parking lot and found seven shell

casings. Ingersoll also canvassed J&B’s at a later time and found an eighth shell casing. The

shell casings were sent to the Michigan State Police (MSP) for analysis. An expert in firearm

examinations testified that the casings were from nine-millimeter luger rounds that required a

nine-millimeter caliber luger firearm to fire.

In an unrelated investigation, Benton Township Police Department Detective Brian Smit

found a gun during a search of the residence where a Daniel Autry was staying. Shortly before

the gun was found, defendant’s brother, Kayjuan Spears, was seen leaving the home. The gun

was sent to the MSP for analysis. An expert in firearm examinations testified that the gun was a

nine-millimeter caliber luger firearm capable of firing the ammunition from the casings that were

recovered at J&B’s. The expert further concluded, based on his examination of four of the eight

casings, that the ammunition was fired from the firearm that had been recovered by Smit. The

results of the examination of the other four casings were inconclusive.

Defendant was subsequently interviewed by MSP Detective Sergeant Michael Logan.

According to Logan, defendant originally told him that he had purchased the gun for $150 from a

man nicknamed “Little Joe” and that he had sold the gun to Autry for $300 in May 2015.

However, in a subsequent interview, defendant said that those statements were not true and that

he had made them up to protect his brother, whom he knew was under investigation. Defendant

stated that the only time he had handled the gun was when his brother handed it to him and he

posed for a picture with it. That picture was entered into evidence at defendant’s trial.

Before trial, the prosecution sought to admit, under MCL 768.27c, the recordings of the

911 call and Davis’s interview with Ingersoll. Defendant objected, arguing that Davis’s

statements did not meet any hearsay exception and that, even if they did, the admission of

-2-

Davis’s statements would violate the Confrontation Clause.1 At a hearing on the matter, the trial

court granted the prosecution’s motion, and also held that Davis’s statements were admissible as

excited utterances and present sense impressions. The trial court also held that Davis’s

statements did not violate the Confrontation Clause because they were made to assist the police

in addressing an ongoing emergency.

After the jury convicted defendant, he filed two motions regarding sentencing. First,

defendant objected to being treated as a fourth-offense habitual offender, because his

September 6, 2010 conviction for resisting and obstructing a police officer in Illinois was a

misdemeanor and therefore could not be counted as a prior felony, and because he did not have a

conviction for possession of marijuana in September 2012. Second, defendant contested

numerous alleged errors in his presentence investigation report (PSIR), and the scoring of several

sentencing guideline variables, including the assessment of 50 points for Offense Variable (OV)

At sentencing, the trial court did not address any of defendant’s challenges to the PSIR or

any scoring challenges, including defendant’s challenge to OV 6. The trial court only addressed

part of defendant’s challenge to his habitual offender status, determining that defendant’s

conviction for resisting and obstructing a police officer in Illinois could be considered a felony in

Michigan for habitual-offender purposes. After the trial court held that this conviction was a

felony, it concluded that defendant could be sentenced as a fourth-offense habitual offender.

When the trial court asked defense counsel whether he had any other additions or corrections,

defense counsel stated that the trial court had addressed each concern that defendant had raised

in his two motions as well as his objections to the PSIR. Defendant was then sentenced as

described. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

Defendant argues that there was insufficient evidence to support his conviction of

AWIM. We disagree. “Challenges to the sufficiency of the evidence are reviewed de novo.”

People v Cline, 276 Mich App 634, 642; 741 NW2d 563 (2007). “To determine whether the

prosecutor has presented sufficient evidence to sustain a conviction, we review the evidence in

the light most favorable to the prosecutor and determine whether a rational trier of fact could find

the defendant guilty beyond a reasonable doubt.” People v Smith-Anthony, 494 Mich 669, 676;

837 NW2d 415 (2013) (citation and quotation marks omitted).

Our review of the sufficiency of the evidence is deferential. A “reviewing court is

required to draw all reasonable inferences and make credibility choices in support of the jury

verdict.” People v Gonzalez, 468 Mich 636, 640-641; 664 NW2d 159 (2003) (citation and

quotation marks omitted). “It is for the trier of fact, not the appellate court, to determine what

inferences may be fairly drawn from the evidence and to determine the weight to be accorded

1 “The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions,

the accused shall enjoy the right... to be confronted with the witnesses against him.” Crawford

v Washington, 541 US 36, 42; 124 S Ct 1354; 158 L Ed 2d 177 (2004).

-3-

those inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). “The scope

of review is the same whether the evidence is direct or circumstantial.” People v Nowack, 462

Mich 392, 400; 614 NW2d 78 (2000). “Circumstantial evidence and reasonable inferences

arising from that evidence can constitute satisfactory proof of the elements of a crime;” Id.

(citation and quotation marks omitted). “Even in a case relying on circumstantial evidence, the

prosecution need not negate every reasonable theory consistent with the defendant’s innocence,

but need merely introduce evidence sufficient to convince a reasonable jury in the face of

whatever contradictory evidence the defendant may provide.” Hardiman, 466 Mich at 423-424

(citation and quotation marks omitted).

“The elements of assault with intent to commit murder are (1) an assault, (2) with an

actual intent to kill, (3) which, if successful, would make the killing murder.” People v Ericksen,

288 Mich App 192, 195-196; 793 NW2d 120 (2010) (citation and quotation marks omitted). In

this case, defendant challenges the sufficiency of the evidence showing his actual intent to kill.

“[A]n intent to kill for purposes of [AWIM] may not be proven by an intent to inflict great bodily

harm or a wanton and wilful disregard of the likelihood that the natural tendency of the acts will

likely cause death or great bodily harm.” People v Brown, 267 Mich App 141, 150; 703 NW2d

230 (2005) (citation and quotation marks omitted). But a “[defendant's intent [can] be inferred

from any facts in evidence,” Ericksen, 288 Mich App at 196, including “the use of a deadly

weapon,” People v Henderson, 306 Mich App 1,11; 854 NW2d 234 (2014), as well as

the nature of the defendant’s acts constituting the assault; the temper or

disposition of mind with which they were apparently performed, whether the

instrument and means used were naturally adapted to produce death, his conduct

and declarations prior to, at the time, and after the assault, and all other

circumstances calculated to throw light upon the intention with which the assault

was made. [Brown, 267 Mich App at 149 n 5 (citations and quotation marks

omitted).]

“Because of the difficulty of proving an actor’s state of mind, minimal circumstantial evidence is

sufficient to establish a defendant’s intent to kill.” People v Unger, 278 Mich App 210, 231; 749

NW2d 272 (2008).

In this case, evidence was presented that Davis had attempted to avoid a confrontation

with defendant. Before Davis could leave the area, however, defendant confronted her, pulled

out a handgun (a dangerous weapon, see Henderson, 306 Mich App at 11), and discharged the

weapon in Davis’s direction. Defendant thus used “an instrument and means” that were

“naturally adapted to produce death.” Brown, 267 Mich App at 149 n 5. Defendant fired eight

times, hitting the vehicle multiple times, which supports the inference that he intended to kill

someone in the car. Id. Testimony from several witnesses supports the conclusion that Davis

had had a serious fight with defendant’s sister in the days before the shooting and that

defendant’s actions in approaching Davis may have been motivated by his ill will towards her.

See Brown, 267 Mich App at 149 n 5. Viewing this evidence in the light most favorable to the

prosecution, Smith-Anthony, 494 Mich at 676, taking into consideration all reasonable inferences

arising from the evidence, Gonzalez, 468 Mich at 640-641, resolving all conflicts in favor of the

prosecution, People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008), and deferring to

-4-

the jury’s assessment of the weight of the evidence and the credibility of the witnesses,

Hardiman, 466 Mich at 428, a rational trier of fact could have found sufficient circumstantial

evidence, Unger, 278 Mich App at 231, to conclude that defendant intended to kill Davis.

Defendant argues on appeal that defendant’s actions could also support the conclusion

that defendant intended to scare, rather than kill, Davis. However, “the prosecution need not

negate every reasonable theory consistent with the defendant’s innocence.” Hardiman, 466

Mich at 423-424. The evidence here was sufficient to allow a rational jury to convict defendant

ofAWIM.

III. ADMISSION OF EVIDENCE

Defendant also argues that Davis’s 911 call and her interview with Ingersoll contained

hearsay statements not subject to an exception and should not have been admitted at trial. We

disagree. We review for an abuse of discretion a trial court’s decision on the admission of

evidence. People v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011). “A trial court

abuses its discretion when its decision falls outside the range of reasonable and principled

outcomes.” People v Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013). “Preliminary

questions of law, such as whether a rule of evidence or statute precludes the admission of

particular evidence, are reviewed de novo[.]” People v Bynum, 496 Mich 610, 623; 852 NW2d

570 (2014). The trial court’s findings of fact in support of an evidentiary ruling are reviewed for

clear error. People v Barrera, 451 Mich 261, 269; 547 NW2d 280 (1996). “A finding is clearly

erroneous when, although there is evidence to support it, the reviewing court, on the whole

record, is left with the definite and firm conviction that a mistake has been made.” People v

Dendel, 481 Mich 114, 130; 748 NW2d 859 (2008), amended 481 Mich 1201 (2008) (citation

and quotation marks omitted). Even if admitted in error, such an error “does not warrant reversal

unless after an examination of the entire cause, it shall affirmatively appear that it is more

probable than not that the error was outcome determinative.” People v Burns, 494 Mich 104,

110; 832 NW2d 738 (2013) (citation and quotation marks omitted).

Hearsay is “a statement, other than the one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).

“Hearsay is generally prohibited and may only be admitted at trial if provided for in an exception

to the hearsay rule.” People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). In this case,

the trial court admitted the 911 call and Davis’s interview with Ingersoll under MCL 768.27c

(domestic violence exception), MRE 803(1) (present sense impression exception), and

MRE 803(2) (excited utterance exception).

MCL 768.27c(l) allows a trial court to admit a statement (that may otherwise be hearsay)

if all of the following apply:

(a) The statement purports to narrate, describe, or explain the infliction or

threat of physical injury upon the declarant.

(b) The action in which the evidence is offered under this section is an

offense involving domestic violence.

-5-

physical injury. Evidence of a statement made more than 5 years before the filing

of the current action or proceeding is inadmissible under this section.

(d) The statement was made under circumstances that would indicate the

statement’s trustworthiness.

(e) The statement was made to a law enforcement officer.

MCL 768.27c(2) provides that circumstances relevant to the determination of trustworthiness

under MCL 768.27c(l)(d) include, but are not limited to, the following:

(a) Whether the statement was made in contemplation of pending or

anticipated litigation in which the declarant was interested.

(b) Whether the declarant has a bias or motive for fabricating the

statement, and the extent of any bias or motive.

statements that are admissible only under this section.

Defendant does not contest that MCL 768.27c(l)(a), (c), and (e) were satisfied, and the

record indicates that those requirements indeed were clearly satisfied. However, defendant

argues that MCL 768.27c(l)(b) was not satisfied because defendant was not “engaged in an

offense involving domestic violence.” We disagree.

An “offense involving domestic violence” for purposes of MCL 768.27c(l)(b) is defined

in MCL 768.27c(5)(b) as follows:

“Domestic violence” or “offense involving domestic violence” means an

occurrence of 1 or more of the following acts by a person that is not an act of selfdefense:

(z) Causing or attempting to cause physical or mental harm to a family or

household member.

(zz) Placing a family or household member in fear of physical or mental

harm.

(z'z'z) Causing or attempting to cause a family or household member to

engage in involuntary sexual activity by force, threat of force, or duress.

(zv) Engaging in activity toward a family or household member that would

cause a reasonable person to feel terrorized, frightened, intimidated, threatened,

harassed, or molested.

-6-

A “[family or household member” includes “[a]n individual with whom the person has or had a

dating relationship.” MCL 768.27c(5)(b)(zv) Defendant does not dispute that he had previously

been in a dating relationship with Davis, and that she was therefore a “family or household

member” under MCL 768.27c(5)(b)(z'v). Rather, defendant appears to argue that he was not

engaged in an offense “involving domestic violence” because his conduct was in retaliation for

the fight between Davis and his sister, and was unrelated to his own relationship with Davis.

However, the motivation for an offense is immaterial to whether it constitutes an “offense

involving domestic violence” for purposes of MCL 768.27c(l)(b) and MCL 768.27c(5)(b).

Moreover, an offense may “involve^ domestic violence” even though the defendant is not

charged with the crime of domestic violence. In People v Railer, 288 Mich App 213, 220; 792

NW2d 776 (2010), we held that assault with intent to commit great bodily harm less than murder

was an “offense involving domestic violence” because “[s]uch conduct constitutes ‘domestic

violence 5 55 as defined by MCL 768.27b(5)(a). Railer, 288 Mich App at 220-221. Similarly in

this case, the offense with which defendant was charged (AWIM) arose out of conduct (shooting

eight times at his ex-girlfriend as she attempted to flee) that “involv[ed] domestic violence.”

Railer, 288 Mich App at 220-221. Accordingly, MCL 768.27c(l)(b) was satisfied.

Defendant also contends that the trial court erred by admitting Davis’s statements under

MCL 768.27c because the statements were not trustworthy and therefore were admitted in

violation of MCL 768.27c(l)(d). The trial court never specifically addressed in its ruling

whether Davis’s statements were trustworthy. However, the trial court noted that the statements

were corroborated by physical evidence, and it ultimately held that they were admissible under

MCL 768.27c, thus necessarily (albeit impliedly) finding the statements to be trustworthy.

Defendant asserts that, because Davis did not testify at any hearings, the trial court lacked a basis

on which to conclude that she was not biased or did not have a motive for fabricating her

statements. See MCL 768.27c(2)(b) (stating that one factor to consider in determining

trustworthiness was possible bias or motive). Defendant argues that there was actually evidence

to conclude the opposite, i.e., that Davis had a motive to fabricate her story and implicate

defendant, because of the recent physical altercation between Davis and his sister. However,

there is no evidence in the record, beyond the mere fact that the fight occurred, to support this

assertion. To the contrary, the evidence suggests that by attempting to leave the vicinity after

learning of defendant’s presence, Davis sought to avoid any type of involvement with defendant.

Even if there were evidence that Davis may have been biased or may have had a motive

to fabricate her story, proof of the factors that are specifically listed in MCL 768.27c(2) is not

required for a finding of trustworthiness. Rather, MCL 768.27c(2) is merely a “nonexclusive list

of possible circumstances that may demonstrate trustworthiness.” People v Meissner, 294 Mich

App 438, 449; 812 NW2d 37 (2011) (holding that “a lack of proof on the subsections [of

MCL 768.27c(2)] did not require the trial court to exclude the statements”). With regard to the

other listed factors, there is nothing in the record to indicate that Davis made the statements in

anticipation or contemplation of litigation. MCL 768.27c(2)(a). And there was ample evidence

that corroborated Davis’s story: her 911 call matched the statement that she gave to Ingersoll;

Hemphill reported largely the same series of events as did Davis; shell casings were found in the

parking lot of J&B’s; and four bullets had impacted the car. MCL 768.27c(2)(c). The trial court

also considered other evidence that tended to indicate the trustworthiness of the statements, such

as the amount of time between when the events occurred and when the victim gave her

-7-

statement, and the victim’s agitated and upset demeanor when making her statements. See

Meissner, 294 Mich App at 449 (stating that a trial court could consider factors outside of

MCL 768.27c(2) when determining whether a victim’s statements were trustworthy).

Considering all the circumstances, the trial court did not err by finding that Davis’s statements in

the 911 call and to Ingersoll were admissible under MCL 768.27c.

Further, because we hold that the evidence was properly admitted under the domestic

violence exception, MCL 768.27c, any error in admitting Davis’s statements under MRE 803(1)

and 803(2) would be harmless. See Gursky, 486 Mich at 620-621.

Defendant additionally argues that the admission of the 911 call and Davis’s interview

with Ingersoll violated his right of confrontation. We disagree. Whether the admission of

evidence “violate[s] a defendant’s Sixth Amendment right of confrontation is a question of

constitutional law that this Court reviews de novo.” People v Nunley, 491 Mich 686, 696-697;

821 NW2d 642 (2012).

The protections of the Confrontation Clause apply “only to statements used as substantive

evidence.” People v Fackelman, 489 Mich 515, 525; 802 NW2d 552 (2011). “In particular, one

of the core protections of the Confrontation Clause concerns hearsay evidence that is

‘testimonial’ in nature.” Nunley, 491 Mich at 697-698, citing Crawford v Washington, 541 US

36, 51; 124 S Ct 1354; 158 L Ed 2d 177 (2004). Statements “are testimonial when the

circumstances objectively indicate that there is no [] ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.” Davis, 547 US at 822. In contrast, “[statements are nontestimonial when

made in the course of police interrogation under circumstances objectively indicating that the

primary purpose of the interrogation is to enable police assistance to meet an ongoing

emergency.” Id. “To determine whether the ‘primary purpose’ of an interrogation is ‘to enable

police assistance to meet an ongoing emergency,’ which would render the resulting statements

nontestimonial, [reviewing courts] objectively evaluate the circumstances in which the encounter

occurs and the statements and actions of the parties.” Michigan v Bryant, 562 US 344, 359; 131

S Ct 1143; 179 L Ed 2d 93 (2011) (citation omitted).

In this case, Davis’s 911 call was clearly made with the primary purpose of assisting in

an ongoing emergency. Davis called to inform the police of the shooting. Davis made the call

immediately after the shooting occurred. Davis’s call appeared to be “a call for help against a

bona fide physical threat” as opposed to “a narrative report of a crime absent any imminent

danger,” which supports finding that the call was made to address an ongoing emergency. Davis,

547 US at 827. Moreover, Davis was so agitated by the events that the trial court, in listening to

the 911 recording, had difficulty understanding her at times, tending to show that the statements

were made “in an environment that was not tranquil, or even (as far as any reasonable 911

operator could make out) safe.” Id. at 827. Consequently, Davis’s 911 call was not admitted in

violation of the Confrontation Clause because the primary purpose of the call was to objectively

seek “to enable police assistance to meet an ongoing emergency.” Id. at 828.

Similarly, the admission of Davis’s statements to Ingersoll did not violate the

Confrontation Clause. When Ingersoll responded to Davis’s residence, all he knew was that

there were shots fired near J&B’s. When he questioned Davis, she told him that defendant had

-8-

shot at her, but she did not say why defendant had done so. Ingersoll’s subsequent questioning

of Davis was objectively necessary to address an ongoing emergency. See Bryant, 562 US at

360. Ingersoll was aware that defendant was still at large and had a gun, see id. at 364 (stating

that “the duration and scope of an emergency may depend in part on the type of weapon

employed”), but was uncertain of defendant’s motivation for shooting at Davis and whether this

was an isolated incident, see id. at 372 (stating that it was significant in that the police were

unsure of whether “the cause of the shooting was a purely private dispute or that the threat from

the shooter had ended” in determining whether there was an ongoing emergency). Ingersoll was

therefore confronted with an ongoing emergency because he was uncertain whether defendant

posed an ongoing risk to the public. See id. at 370-371 (stating that “the existence and duration

of an emergency depend on the type and scope of danger posed to the victim, the police, and the

public.”). Defendant’s location was unknown when Ingersoll questioned Davis. See id. at 374

(stating that a finding of an ongoing emergency is supported if the threat’s location remained

unknown). Accordingly, Ingersoll’s questions to Davis were “the exact type of questions

necessary to allow the police to ‘ “assess the situation, the threat to their own safety, and possible

danger to the potential victim” ’ and to the public,” id. at 376 (quoting Davis, 547 US at 832),

and did not violate defendant’s right of confrontation.

IV. SENTENCING VARIABLES

“Offense variable 6 is the offender’s intent to kill or injure another individual.”

MCL 777.36(1). A trial court is to assess 50 points under OV 6 if “[t]he offender had

premeditated intent to kill.” MCL 777.36(l)(a). Defendant challenges the trial court’s scoring

of OV 6, arguing that it should have been scored at 25 points instead of 50 points.2 We disagree.

“Under the sentencing guidelines, the [trial] court’s factual determinations are reviewed for clear

error and must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich

430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the

scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question

of statutory interpretation, which an appellate court reviews de novo.” Id. “Clear error exists if

the reviewing court is left with a definite and firm conviction that a mistake has been made.”

People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008) (citation and quotation marks

omitted).

A jury’s decision that a defendant had the requisite intent to kill for purposes of AWIM

does not reach the issue of whether the intent was premeditated. People v Steanhouse, 313 Mich

App 1, 41; 880 NW2d 297 (2015), affd in part, rev’d in part on other grounds__ Mich___

(2017). “Premeditation, which requires sufficient time to permit the defendant to take a second

2 We note that there appears to be a second volume of the sentencing transcript from the lower

court. This Court requested that transcript, and defendant failed to provide it to this Court.

Defendant was responsible for providing that transcript on appeal. MCR 7.210(B)(1)(a). Failure

to provide a relevant transcript “constitutes a waiver.” People v Anderson, 209 Mich App 527,

535; 531 NW2d 780 (1995). Nonetheless, we address defendant’s argument with reference to

the record that is before this Court.

-9-

look, may be inferred from the circumstances surrounding the killing.” People v Coy, 243 Mich

App 283, 315; 620 NW2d 888 (2000). “[B]ut the inferences must have support in the record and

cannot be arrived at by mere speculation.” Steanhouse, 313 Mich App at 41. Factors that may

be considered in determining premeditation include “(1) the previous relationship between the

defendant and the victim; (2) the defendant’s actions before and after the crime; and (3) the

circumstances of the killing itself, including the weapon used and the location of the wounds

inflicted.” Id. at 40-41 (citation and quotation marks omitted).

Evidence was presented that, in the days leading up to the shooting, Davis had been in a

serious fight with defendant’s sister. As a result, when Davis became aware of defendant’s

presence at J&B’s, she attempted to leave. However, rather than letting Davis leave, defendant

confronted her. Defendant was carrying a firearm when he approached Davis, and he discharged

the firearm eight times in her direction, both of which support a finding of premeditation. See

Coy, 243 Mich App at 315. Based on all the facts and circumstances, there was sufficient

evidence to conclude that defendant acted with premeditation, and the trial court properly

assessed 50 points for OV 6. Hardy, 494 Mich at 438. Further, defense counsel was not

ineffective in failing to object to the scoring of OV 6 at sentencing because an objection would

have been meritless. See People v Putman, 309 Mich App 240, 245; 870 NW2d 593 (2015)

(holding that defense counsel was “not ineffective for failing to raise meritless or futile

objections”).

V. HABITUAL OFFENDER ENHANCEMENT

Defendant also argues that the trial court erred by sentencing him as a fourth-offense

habitual offender because he only had one prior felony conviction. We disagree. “[T]he proper

construction or application of statutory sentencing guidelines presents a question of law that is

reviewed de novo.” People v Mack, 265 Mich App 122, 125; 695 NW2d 342 (2005).

Defendant first argues that the trial court relied on a non-existent possession of marijuana

conviction from September 12, 2012. A review of defendant’s PSIR reveals, however, that on

February 28, 2011 defendant pleaded to a charge of possessing 30 to 500 grams of marijuana,

and that he was sentenced to 2 years’ probation. That same charge indicates that, on September

12, 2012, defendant violated his probation and was subsequently sentenced to 18 months’

imprisonment. There is no other reference to September 12, 2012 in defendant’s PSIR.

Therefore, it appears that, for habitual offender purposes, two of the listed felonies (possession of

marijuana and a probation violation attendant to it) were actually one.

Nonetheless, defendant’s PSIR reveals a 2010 conviction for manufacture/delivery of

marijuana, and subsequent 2010 and 2011 convictions for second-offense and third-offense

possessions of marijuana. All of these convictions fit the definition of a “felony” under the Code

of Criminal Procedure, as they were punishable by imprisonment for more than one year. See

MCL 761.1(g); People v Smith, 423 Mich 427, 445; 378 NW2d 384 (1985). And defendant

admits on appeal that his conviction in Illinois for resisting and obstructing a police officer also

fits this definition. Defendant thus was convicted of at least three prior felonies for purposes of

the habitual offender statute, and any error was harmless. See People v McAllister, 241 Mich

App 466, 473; 616 NW2d 203, 207 (2000), remanded on other grounds 465 Mich 884 (2001)

(“However, when the alleged inaccuracies would have no determinative effect on the sentence,

the court’s failure to respond may be considered harmless error.”).

-10-

Defense counsel was also not ineffective regarding this issue. Defense counsel is not

required to make futile objections. See Putman, 309 Mich App at 245. Had defense counsel

objected at sentencing to defendant’s habitual-offender status, there is not a reasonable

probability that the outcome would have been different. See People v Trakhtenberg, 493 Mich

38, 51; 826 NW2d 136 (2012).

VI. FELONY-FIREARM

In his Standard 4 brief,3 defendant argues that there was insufficient evidence to support

his conviction for felony-firearm because no evidence directly linked him to the gun that was

admitted into evidence at trial. In the alternative, defendant argues that defense counsel was

ineffective for not moving to suppress the gun on the ground that it could not be linked to

defendant. We disagree. Again, we review de novo challenges to the sufficiency of the

evidence. Cline, 276 Mich App at 642.

“The elements of felony-firearm are that the defendant possessed a firearm during the

commission of, or the attempt to commit, a felony.” People v Avant, 235 Mich App 499, 505;

597 NW2d 864 (1999). Defendant argues that there was insufficient evidence to prove that

defendant had actual or constructive possession of the handgun that was admitted at trial.

Defendant argues that the only evidence linking him to the handgun was the photograph of him

holding it. However, Hemphill testified that defendant had a gun at J&B’s and fired multiple

rounds at Howard’s car as he drove away with Davis. Ingersoll testified that Davis told him

during their interview that defendant had fired at her as she was being driven away from J&B’s

in Howard’s car. And Davis reported in her 911 call that defendant had fired a gun at her.

Viewing this evidence in the light most favorable to the prosecution, Smith-Anthony, 494 Mich at

676, there was sufficient evidence for the jury to conclude that defendant possessed a firearm

during the commission of the felony for which he was convicted. Defense counsel was not

ineffective for moving to suppress the admission of the handgun because any such objection

would have been meritless. See Putman, 309 Mich App at 245.

Affirmed.

/s/ Mark T. Boonstra

Is/ Amy Ronayne Krause

Is/ Brock A. Swartzle

3 A supplemental brief filed in pro per by a criminal defendant pursuant to Michigan Supreme

Court Administrative Order 2004-6, Standard 4.

-11-

APPENDIX E:

Michigan Court of Appeals Order Denying Remand to Trial Court for

Evidentiary Hearing on Direct Appeal of State Court Judgment,

People v. Willingham, No. 331267 (Mich. Ct. App., Feb. 2, 2017)

Court of Appeals, State of Michigan

ORDER

William B. Murphy

Presiding Judge

People of MI v Toshi Edward Willingham

Docket No.

331267

David H. Sawyer

LC No.

2015-002016-FC

Jane M. Beckering

Judges

The Court orders that the motion to remand pursuant to MCR 7.211(C)(1) is DENIED.

Defendant-appellant has not demonstrated that further factual development of the record or an initial

ruling by the trial court is necessary at this time in order for this Court to review the issues on appeal.

However, defendant-appellant has preserved his objection to the scoring of the Offense Variable 6 by

raising that issue in his motion to remand, MCR 6.429(C), provided it was not previously waived.

A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on

FEB - 2 2017

Date

APPENDIX E:

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.