Petition for Writ of Certiorari — Keith Bernard Smith, Petitioner v. Noah Nagy, Warden

APPENDIX la thru 13a

Opinion of the Court of Appeals

n»’

6th Circuit

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RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0183p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Keith Bernard Smith,

Petitioner-Appellant,

>

No. 18-1751

v.

Noah Nagy, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:1 l-cv-10261—Arthur J. Tamow, District Judge.

Argued: April 29, 2020

Decided and Filed: June 15, 2020

Before: COLE, Chief Judge; SILER and CLAY, Circuit Judges.

COUNSEL

ARGUED- Wesley R. Abrams, VORYS, SATER, SEYMOUR AND PEASE LLP, Cincinnati,

Ohio for Appellant. Daniel Ping, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellee. ON BRIEF: Wesley R. Abrams, Nathan L. Colvin, VORYS,

SATER, SEYMOUR AND PEASE LLP, Cincinnati, Ohio, for Appellant. Daniel Ping, John S.

Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for

Appellee.

OPINION

COLE, Chief Judge. Keith Bernard Smith, a Michigan prisoner, appeals the denial of his

petition for a writ of habeas corpus under 28 U.S.C. § 2254. He argues that he is entitled to relief

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because: (1) the state court should have granted him a post-trial evidentiary hearing to determine

whether the jury improperly relied on certain prejudicial information in rendering its verdict;

(2) there was insufficient evidence to convict him; and (3) the state and district courts erred in

refusing to consider new evidence that supports his innocence. Because none of Smith’s claims

provides us a basis for exercising our limited authority to grant habeas relief to a state prisoner,

we affirm the denial of the petition.

I.

On the morning of February 15, 2008, Detroit police discovered Annette Ralston, a 58year-old woman, dead in the bedroom of her home. Ralston had suffered several stab wounds to

the head and groin area, slash wounds to the face, and blunt-force wounds to the back of the

head. A severed carotid artery was likely the immediate cause of death. Ralston also exhibited

multiple “defensive-type” cuts and bruises on her hands and wrists, and she was clutching long

brown hair, which was never matched to any particular person. Blood was found throughout

Ralston’s house.

Four days after the discovery of Ralston’s body, police arrested Keith Smith and charged

ft..

him with three crimes in connection with Ralston’s death: first-degree felony murder, firstdegree premeditated murder, and assault with intent to commit armed robbery. At the time that

the police arrested Smith, they also seized Smith’s van and other personal belongings, including

a pair of eyeglasses. The van and eyeglasses were processed for blood evidence, but none was

recovered. No knives or other weapons were recovered from Smith. Overall, there was no

physical evidence linking Smith to Ralston’s death.

At Smith’s trial, two of Smith’s acquaintances—Shayne Dennis and Latoya Evans—

testified that Smith had come over to their house two days after the discovery of Ralston’s body.

At some point during the conversation, Smith admitted that he had “done something very bad”

and proceeded to confess to killing a woman “at a safe house.” (R. 12-4, PagelD 428-29.)

Smith conveyed that he had intended to rob the safe house. To that end, he dropped off the

victim’s son somewhere else and went back to the house with the victim, where he ended up

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killing her while trying to force her to open a safe located in the bedroom. Evans recalled that

Smith had identified the victim as “a fifty year old white lady.” (Id., PagelD 514.)

Lawanda Baytops, Ralston’s housemate, also testified at Smith’s trial. Baytops told the

jury about a “big” jewelry box that Ralston kept in her bedroom, which was “shaped like a safe

but did not have a lock. (R. 12-3, PagelD 325, 350.) Baytops remembered seeing the jewelry

box still in Ralston’s bedroom on the morning Ralston’s body was discovered. Baytops also

recalled that Smith was at the house with Ralston and Ralston’s son on the evening before

Ralston’s body was discovered. Ralston’s son, James White, confirmed that Smith was at the

house that evening and that, later, Smith drove White to his foster home.

The jury convicted Smith of first-degree felony murder and assault with intent to commit

armed robbery but acquitted him of first-degree premeditated murder.

Before sentencing,

however, one juror approached defense counsel and reported that he and other jurors had

changed their vote from “not guilty” to “guilty” based on a belief that Smith would receive a

relatively light sentence for felony murder. Smith moved for new trial or an evidentiary

hearing, but the state trial judge declined to grant either. The trial judge then sentenced Smith to

the mandatory sentence of life imprisonment without possibility of parole for the felony-murder

conviction, see Mich. Comp. Laws § 750.316(1), and a concurrent sentence of five to forty

years’ imprisonment for the assault conviction.

Smith appealed to the Michigan Court of

Appeals, challenging both the sufficiency of the evidence used to convict him and the trial

judge’s denial of an evidentiary hearing and new trial. The Michigan Court of Appeals rejected

Smith’s arguments on the merits and affirmed his convictions. People v. Smith, 2009 WL

3837414, at *2, *4-5 (Mich. Ct. App. Nov. 17, 2009) (per curiam). The Michigan Supreme

Court denied Smith’s pro se application for discretionary review on March 29, 2010, in a

summary order. People v. Smith, 779 N.W.2d 813 (Mich. 2010) (mem.).

On January 13, 2011, Smith, acting pro se, filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Michigan.

Subsequently, in March 2012, Smith moved, and the district court agreed, to hold the petition in

abeyance while Smith returned to state court to exhaust additional claims.

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Smith filed a motion for relief from judgment in the state trial court on June 18, 2012,

which was denied in November 2012. Smith did not appeal. In March 2013, Smith filed a

second motion for relief from judgment in the state trial court. Relevant here, this motion

included a claim for a new trial based on an affidavit that was signed in October 2012. The

affiant, Latoya Evans’s brother Robert Evans, attested that he spoke with Latoya Evans and

Shayne Dennis on the day that Smith allegedly confessed. Robert Evans stated that, according to

his sister and Dennis, Smith had not confessed to any crime but rather only said that the police

wanted to speak with him. Latoya Evans and Shayne Dennis, however, had thought that they

might receive a reward for providing information and resolved to “figure out how to get that

money if they could.” (R. 41 -3, PagelD 1046.) The state court declined to consider the merits of

Smith’s claim for a new trial based on the affidavit, holding that the claim was procedurally

barred on state-law grounds because Smith failed to establish that the affidavit’s allegations were

discovered after he filed his first motion for relief from judgment.

Rather than appealing the state trial court’s decision, Smith filed a motion for a judgment

nunc pro tunc vacating the order denying his first motion for relief from judgment, asserting that

the first motion was filed by a prison paralegal without his knowledge and that he never received

the court orders denying either of his motions for relief from judgment. The state trial court

denied the motion. Smith filed a delayed appeal, which the Michigan Court of Appeals denied

“for lack of merit in the grounds presented.” People v. Smith, No. 331894 (Mich. Ct. App. June

27, 2016) (order). On October 24, 2017, the Michigan Supreme Court denied review in a

summary order. People v. Smith, 902 N.W.2d 419 (Mich. 2017) (mem.).

Having exhausted his state remedies, Smith returned to the district court and amended his

habeas petition in December 2017 to add new claims, including one based on the affidavit of

Robert Evans. On June 12, 2018, the district court denied the amended petition. Like the

Michigan Court of Appeals, the district court rejected Smith’s challenges to the denial of an

evidentiary hearing and to the sufficiency of the evidence. The district court construed Smith’s

claim based on Robert Evans’s affidavit to be an actual innocence claim and rejected it as well,

holding that the affidavit by itself was not sufficient to support a freestanding actual innocence

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Although the district court denied the amended petition, it granted a certificate of

appealability on all claims. This timely appeal followed.

In this court, Smith filed a pro se brief and moved for appointment of counsel. The

warden responded. We granted Smith’s motion for appointment of counsel, and a second round

of briefing followed.

II.

In habeas proceedings, we review de novo the district court’s legal conclusions and

mixed determinations of law and fact. Bennett v. Brewer, 940 F.3d 279, 286 (6th Cir. 2019).

We typically review the district court’s factual findings for clear error, but when the district court

bases its factual determinations only on trial transcripts and court records—making no credibility

determination or other apparent finding of fact on its own—we review the district court’s factual

conclusions de novo. Id.\ see also Ramonez v. Berghuis, 490 F.3d 482, 486 (6th Cir. 2007);

Dando v. Yukins, 461 F.3d 791, 796 (6th Cir. 2006).

That said, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

constrains our review of state-court decisions in habeas cases. Under AEDPA, a claim that was

“adjudicated on the merits” in the state court may not be a basis for habeas relief unless its

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 on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

The “contrary to” and “unreasonable application” clauses of 28 U.S.C. § 2254(d)(1) have

“independent meaning.” Williams v. Taylor, 529 U.S. 362, 404—05 (2000); accord Bell v. Cone,

535 U.S. 685, 694 (2002). A state-court decision is “contrary to” clearly established federal law

if it (1) applies a rule that contradicts governing Supreme Court law; or (2) confronts a set of

facts “materially indistinguishable” from a decision of the Supreme Court and yet arrives at a

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different result. Williams, 529 U.S. at 405-06. A state-court decision involves an “unreasonable

application” of clearly established federal law if it (1) correctly identifies the governing legal rule

but unreasonably applies it to the facts of the instant case; or (2) either unreasonably extends an

established legal principle to a new context where it should not apply or unreasonably refuses to

extend that principle to a new context where it should apply. Id. at 407. We analyze the state

court’s adjudication of mixed questions of law and fact under the “unreasonable application”

prong of AEDPA. Jackson v. Bradshaw, 681 F.3d 753, 760 (6th Cir. 2012).

The Supreme Court has emphasized that “an unreasonable application of federal law is

different from an incorrect application of federal law.” Williams, 529 U.S. at 410. Subsequent

Supreme Court decisions have interpreted this directive to mean that an unreasonable application

“must be ‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.”

White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76

(2003)). AEDPA “stops short of imposing a complete bar on federal-court relitigation of claims

already rejected in state proceedings.”

Harrington v. Richter, 562 U.S. 86, 102 (2011).

Nevertheless, the state court’s error must be “well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Id. at 103.

III.

Smith raises three claims on appeal. First, he contends that the state court acted contrary

to or unreasonably applied clearly established federal law by denying him an evidentiary hearing

to determine whether the jury improperly relied on certain prejudicial information in rendering

its verdict. Second, he contends that the state court unreasonably applied clearly established

federal law in concluding that there was sufficient evidence to convict him of felony murder and

assault. Third, he contends that the state and district courts erred in refusing to consider the

affidavit of Robert Evans. We address each claim in turn.

A.

The Sixth Amendment to the United States Constitution guarantees a criminal defendant

the right to a trial “by an impartial jury.” U.S. Const, amend. VI. This guarantee requires a jury

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to arrive at its verdict “based upon the evidence developed at the trial.

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Turner v. Louisiana, 379

U.S. 466, 472 (1965) (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)).

Under the Supreme Court’s decision in Remmer v. United States, it is clearly established

that “a trial court, faced with an indication of jury bias, must conduct a hearing with all

interested parties permitted to participate.’” United States v. Owens, 426 F.3d 800, 805 (6th Cir.

2005) (quoting Remmer v. United States, 347 U.S. 227, 230 (1954)); see also Smith v. Phillips,

455 U.S. 209, 215 (1982) (“This Court has long held that the remedy for allegations of juror

partiality is a hearing in which the defendant has the opportunity to prove actual bias.”).

Although a defendant “must do more than simply raise the possibility of bias” to be entitled to a

Remmer hearing, “a ‘colorable claim of extraneous influence’” is sufficient. Owens, 426 F.3d at

805 (quoting United States v. Davis, 111 F.3d 552, 557 (6th Cir. 1999)). Once the defendant

raises a colorable claim of extraneous influence, the trial court “must hold a Remmer hearing ‘to

afford the defendant an opportunity to establish actual bias.’” United States v. Lanier, 810 F.3d

546, 549 (6th Cir. 2017) (quoting Davis, 111 F.3d at 557).

The requirements of Remmer exist alongside the no-impeachment rule embodied in

Federal Rule of Evidence 606(b), which limits the extent to which juror testimony may be used

as evidence to impeach a jury verdict. Rule 606(b) provides that [djuring an inquiry into the

validity of a verdict or indictment, a juror may not testify about any statement made or incident

that occurred during the jury’s deliberations; the effect of anything on that juror’s or another

juror’s vote; or any juror’s mental processes concerning the verdict or indictment.” Fed. R. Evid.

606(b)(1). The rule contains several important exceptions, including when a juror’s testimony

relates to whether “extraneous prejudicial information was improperly brought to the jury’s

attention” or whether “an outside influence was improperly brought to bear on any juror.” Id.

606(b)(2)(A)-(B). Subject to the express exceptions in section (b)(2), however, Rule 606(b)

“prohibits] the use of any evidence of juror deliberations” to impeach a jury verdict. Warger v.

Shauers, 574 U.S. 40, 48 (2014). Michigan has a similar no-impeachment rule. See Mich. R.

Evid. 606(b); see also People v. Budzyn, 566 N.W.2d 229, 236 (Mich. 1997) (“[OJral testimony

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or affidavits may only be received on extraneous or outside errors, such as undue influence by

outside parties.”).1

The no-impeachment rule is grounded in “[substantial policy considerations,” such as

encouraging “full and frank discussion in the jury room,” ensuring the finality of verdicts, and,

overall, preserving the integrity of the jury system. See Tanner v. United States, 483 U.S. 107,

119-21 (1987).

Accordingly, the Supreme Court has noted that the no-impeachment rule

“harmonize[s] with,” rather than detracts from, the holding of Remmer, which also is based on

the principle that “the integrity of jury proceedings must not be jeopardized by unauthorized

invasions.” Id. at 120 (quoting Remmer, 347 U.S. at 229).

We similarly have observed that the no-impeachment rule, including its exceptions, seeks

“to balance the preservation of the integrity of the jury system and the rights of the defendant.”

United States v. Logan, 250 F.3d 350, 380 (6th Cir. 2001), superseded on other grounds by

statute as recognized in McAuliffe v. United States, 514 F. App’x 542, 549 (6th Cir. 2013). This

balance means that “if [a] case involves an extraneous or external influence on the jury, then a

post-verdict interrogation of jurors is permitted in order to adequately protect the defendant’s

constitutional rights.”

Id.

But if the case instead involves an “internal influence,” the

constitution does not require post-verdict interrogation of jurors.

Id.; see also Garcia v.

Andrews, 488 F.3d 370, 375 (6th Cir. 2007) (“[A]n evidentiary hearing delving into allegations

of juror misconduct is required only where ‘extrinsic influence or relationships have tainted the

deliberations.’” (quoting Tanner, 483 U.S. at 120)).2

1 Michigan Rule of Evidence 606 was amended in 2012 to make it consistent with Federal Rule of Evidence

606. Mich. R. Evid. 606, Staff Comment to 2012 Amendment. At the time the Michigan Court of Appeals

considered the merits of Smith’s case in 2009, there was no Michigan counterpart to Federal Rule of Evidence

606(b). Smith, 2009 WL 3837414, at *2 n.l. Rather, Michigan’s no-impeachment rule at the time was judicially

created. See Budzyn, 566 N.W.2d at 236; Hoffman v. Monroe Pub. Sch., 292 N.W.2d 542, 545 (Mich. Ct. App.

1980).

2The Supreme Court has recognized one circumstance in which application of the no-impeachment rule

would violate a defendant’s Sixth Amendment rights: “where a juror makes a clear statement that indicates he or she

relied on racial stereotypes or animus to convict a criminal defendant.” Peha-Rodriguez v. Colorado, 137 S. Ct.

855, 869 (2017). In carving out this “constitutional exception for evidence of racial bias,” id. at 865, the Supreme

Court concluded that such bias is “a familiar and recurring evil that, if left unaddressed, would risk systemic injury

to the administration of justice,” id. at 868. The Supreme Court moreover concluded that other safeguards in the

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The distinction between external and internal influences is therefore critical. In Tanner,

the Supreme Court decided that allegations of jurors being intoxicated during the trial related to

an internal influence. Tanner, 483 U.S. at 116-26. Focusing on “the nature of the allegation”

rather than the physical location of the jurors at the time the alleged misconduct occurred, id. at

117, the Tanner Court distinguished cases where a bribe was offered to a juror, id. (citing

Remmer, 347 U.S. at 228-30); where a court bailiff made comments about the defendant in the

presence of the jury, id. (citing Parker v. Gladden, 385 U.S. 363, 365 (1966) (per curiam));

where a juror submitted an employment application to the prosecutor’s office during the trial, id.

(citing Phillips, 455 U.S. at 209); and where jurors brought newspaper articles about the case

into the jury room, id. at 118 (citing United States v. Thomas, 463 F.2d 1061 (7th Cir. 1972)).

Instead, the Court likened the circumstances in Tanner to a claim that a juror had a psychological

disorder, id. at 118-19 (discussing United States v. Dioguardi, 492 F.2d 70 (2d Cir. 1974)); or a

claim that a juror did not understand English, id. at 119 (citing United States v. Pellegrini, 441 F.

Supp. 1367 (E.D. Pa. 1977), aff’d without opinion, 586 F.2d 836 (3d Cir. 1978) (table)). More

recently, the Supreme Court unanimously decided that alleged bias based on a juror’s own

personal experiences also constituted an internal influence.

Warger, 574 U.S. at 51-52.

“‘External’ matters include publicity and information related specifically to the case the jurors

are meant to decide,” the Court explained, “while ‘internal’ matters include the general body of

experiences that jurors are understood to bring with them to the jury room.” Id. at 51.

Likewise, we have explained that an external influence “must either relate to the case that

the jurors are deciding or be physically brought to the jury room or disseminated to the jury.”

Thompson v. Parker, 867 F.3d 641, 648 (6th Cir. 2017).

Considerations based on jurors’

“general knowledge” or “their own wisdom, experience, and common sense” do not constitute

external influences. Id. at 647-48 (internal quotation marks and citation omitted). Thus, we

found an external influence where jurors looked up the defendant’s Facebook profile and

performed a Google search for information relating to issues in the case. Ewing v. Horton,

914 F.3d 1027, 1029-30 (6th Cir. 2019). But we found no external influence where a jury

trial process—for instance, voir dire—“may prove insufficient” at revealing racial bias. Id. at 868-69. Smith does

not contend that Pena-Rodriguez applies here.

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decided to sentence a defendant to death after discussing a news account of a different defendant

who had committed murder after being paroled. Thompson, 867 F.3d at 646-49.

Here, Smith claims that there was an improper external influence on the jury because

jurors allegedly changed their votes from “not guilty” to “guilty” based on the belief that Smith

would receive a relatively light sentence for felony murder. The state trial court, after hearing

arguments by counsel on both sides, denied Smith’s request for a Remmer hearing.

The

Michigan Court of Appeals affirmed the trial court’s ruling, reasoning that Smith had made “no

allegation that a party outside the jury panel approached a member of the jury and provided

information on a possible sentence” and that, moreover, “the possible penalty for conviction has

no bearing on whether the evidence presented at trial could establish each of the necessary

elements of the charged crimes.” Smith, 2009 WL 3837414, at *2. The Michigan Supreme

Court denied discretionary review in a summary order.

779 N.W.2d at 813.

We therefore

review the decision of the Michigan Court of Appeals, as it is the last explained state-court

decision. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); see also Guilmette v. Howes, 624

F.3d 286, 291 (6th Cir. 2010) (en banc) (“We must... look to the last reasoned state court

opinion to determine the basis for the state court’s rejection of [the petitioner’s] claim.”). And

because the Michigan Court of Appeals adjudicated Smith’s claim on the merits, we apply

AEDPA’s required deference. See 28 U.S.C. § 2254(d).

Smith first argues that the Michigan Court of Appeals applied the wrong legal standard,

and thus, its decision is “contrary to” clearly established federal law. In particular, Smith argues

that the state court focused on whether he was entitled to a new trial, rather than on whether he

was entitled to a Remmer hearing at which he would have the opportunity to show he was

entitled to a new trial. It is true that the standard for obtaining a new trial is distinct from the

standard for obtaining a Remmer hearing: a defendant must show actual prejudice to be entitled

to a new trial, whereas the defendant only has to establish some likelihood of prejudice to be

entitled to a Remmer hearing. Phillips, 455 U.S. at 217—18, 221; see also, e.g., Ewing, 914 F.3d

at 1030-31; United States v. Harris, 881 F.3d 945, 953-54 (6th Cir. 2018); Davis, 177 F.3d at

557. Thus, if the Michigan Court of Appeals had held that Smith was not entitled to a Remmer

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hearing simply because he had failed to establish actual prejudice, such a decision would have

been contrary to clearly established federal law.

The crux of the Michigan Court of Appeals’s decision, however, is not that Smith failed

to establish actual prejudice but rather that he failed to allege that the jury’s information on

possible punishment came from a source outside of the jury room.

See Smith, 2009 WL

3837414, at *2. In holding that the information on possible punishment needed to have involved

an outside source, the Michigan Court of Appeals rejected the view that consideration of possible

punishment by the jury is necessarily extraneous. See id.

Smith argues that the Michigan Court of Appeals “misconstrued,” and thus unreasonably

applied, federal law in concluding that the jury’s consideration of punishment was not

necessarily extraneous. He does not contend that there is a Supreme Court decision establishing

that a jury’s consideration of possible punishment is in itself extraneous or otherwise

unconstitutional, but rather analogizes to decisions from this and other circuits applying Remmer,

Tanner, and their progeny. These decisions are all distinguishable.

First, Smith points to United States v. Martinez, 14 F.3d 543, 550—52 (11th Cir. 1994),

where the Eleventh Circuit, on direct appeal, reversed the defendant’s convictions and remanded

for a new trial partly because the jury had considered information about the defendant’s possible

sentence. But in Martinez, there was clear indication that the information on sentencing came

from an outside source: a newspaper article that one of the jurors had seen and then discussed in

the jury room. Id. at 547. There is no similar indication in this case. Additionally, the jury in

Martinez had used a dictionary to define terms that arose during deliberations, watched news

accounts of the trial on television, and regularly brought newspapers reporting trial events into

the jury room. Id. at 550. There is no allegation that anything of that sort happened here.

Second, Smith points to United States v. Herndon, 156 F.3d 629 (6th Cir. 1998). In

Herndon, also a case on direct appeal, we remanded for a Remmer hearing because one of the

jurors allegedly had prior business dealings with the defendant. Id. at 636—38. We held that

such a circumstance constituted an external influence because it “derived from specific

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knowledge about or a relationship with either the parties or their witnesses.” Id. at 636. Nothing

indicates that any such knowledge or relationship exists here.

Third, Smith directs our attention to United States v. Harris, 881 F.3d 945, 952-54 (6th

Cir. 2018), another case on direct appeal where we remanded for a Remmer hearing. In Harris,

although some question remained as to whether actual prejudice existed, there was “credible

evidence” that the live-in girlfriend of one of the jurors had discovered and viewed the

defendant’s Linkedln profile, likely after searching for the defendant on Google. Id. at 953-54.

Here, in contrast, there is nothing suggesting that the information the jury considered regarding

punishment came from a similar external source.

For the same reason, the other cases to which Smith calls our attention are

distinguishable.

See Ewing, 914 F.3d at 1029-30 (jury allegedly discussed the defendant’s

Facebook profile and used Google to search for information related to the case); Oliver v.

Quarterman, 541 F.3d 329, 339—40 (5th Cir. 2008) (jury allegedly consulted Bible passages in

deciding whether to impose the death sentence); Doan v. Brigano, 237 F.3d 722, 735-36 (6th

Cir. 2001) (juror allegedly conducted an experiment at home to test claims made during the

defendant’s testimony), abrogated on other grounds by Wiggins v. Smith, 539 U.S. 510, 534

(2003); United States v. Aguirre, 108 F.3d 1284, 1288 (10th Cir. 1997) (jury, in deciding

whether to convict the defendant of conspiracy to distribute drugs, allegedly used a dictionary to

look up the meaning of the words “distribution” and “pontificate”). None of the cases that Smith

cites shows that the Michigan Court of Appeals unreasonably applied clearly established federal

law.

Instead, we find the Fourth Circuit’s decision in Fullwood v. Lee, 290 F.3d 663 (4th Cir.

2002), to be instructive.

In that case, the defendant argued that the jury was improperly

influenced in deciding whether to impose the death penalty because it allegedly became aware of

several pieces of information:

(1) the defendant had previously been sentenced to death by

another jury, but the sentence had been reversed; (2) any decision it made would be appealed;

and (3) if it handed down a life sentence, the defendant would be eligible for parole within 10 to

15 years.

Id. at 682-83.

The Fourth Circuit, on habeas review, concluded that the jury’s

awareness of the defendant’s prior death sentence was necessarily an external influence, even

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though the source of the information was never identified, because it “was not revealed to the

jury during trial” and “not the kind of general information that jurors bring with them into

deliberations.” Id. at 682. In contrast, the Fourth Circuit decided that the jury’s awareness of the

defendant’s ability to appeal and the possibility of parole was not necessarily an external

influence because such awareness derived from general information and “preconceived notions

about the legal process.” Id. at 683-84.

In this case, we find it conceivable that the jurors could have reached the mistaken

conclusion that felony murder carries a relatively light sentence based simply upon preconceived

notions or beliefs about the legal system. In other words, the jurors’ information about Smith’s

possible sentence reasonably falls within the realm of “general information that jurors bring with

them into deliberations.” See id. at 682. Accordingly, it was not unreasonable for the Michigan

Court of Appeals to conclude that the jury’s consideration of punishment was not necessarily

extraneous and that, absent a colorable allegation that the information came from some outside

source, Smith was not entitled to a Remmer hearing.

Smith, though, makes one final argument.

He suggests that he did, in fact, raise a

colorable claim that the specific information the jury considered regarding punishment came

from an outside source. He focuses on one particular statement that his trial counsel made to the

trial judge at the argument on whether to grant an evidentiary hearing:

The case law is if it was internal consideration, we wouldn’t even be here. It has

to be something that is external to the jury, and their deliberations. It’s not that

they talked about something inside, [it’s] that they had something from outside

that was introduced.

(R. 12-6, PagelD 612.) Based on this statement, Smith contends that his trial counsel raised a

colorable claim that the information regarding possible punishment came from an outside source.

But trial counsel’s statements at other points in the argument suggest otherwise. Indeed, at the

beginning of the argument, trial counsel plainly stated, “We would submit the extrinsic influence

here was penalty that was discussed improperly by the jury.”

{Id., PagelD 609.)

Thus,

examining trial counsel’s argument as a whole, we find that it was not unreasonable for the

Michigan Court of Appeals to conclude that Smith failed to allege an outside source and,

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therefore, failed to make a colorable claim of extraneous influence.

We affirm the district

court’s denial of habeas relief with respect to Smith’s claim of jury bias.

B.

Smith’s next claim for relief is that his convictions for felony murder and assault rest on

insufficient evidence.

Specifically, he argues that there was insufficient evidence both to

identify him as the perpetrator and to establish intent to commit a felony

in this case, larceny.

The warden, as an initial matter, asserts that Smith did not exhaust part of this claim because he

did not present to the state courts the specific argument that there was insufficient evidence of his

intent to commit a larceny. Our disposition of Smith’s claim, however, does not require us to

decide this exhaustion issue.

Therefore, we proceed directly to the merits.

See 28 U.S.C.

§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the

State.”).

It is well established that the Due Process Clause of the Fourteenth Amendment “protects

the accused against conviction except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he [or she] is charged.

In re Winship, 397 U.S.

358, 364 (1970). In evaluating a claim that a defendant has been convicted based on insufficient

evidence, we consider “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). This standard

“must be applied with explicit reference to the substantive elements of the criminal offense as

defined by state law.” Id. at 324 n.16. “[W]e do not reweigh the evidence, re-evaluate the

credibility of witnesses, or substitute our judgment for that of the jury.” Brown v. Konteh, 567

F.3d 191, 205 (6th Cir. 2009).

Additionally, where, as here, the state court adjudicated the claim on the merits, there is a

second layer of deference mandated by AEDPA. That is, even if we were to conclude that no

rational trier of fact could have found the defendant guilty beyond a reasonable doubt, we “must

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still defer to the state appellate court’s sufficiency determination as long as it is not

unreasonable.” Id. (emphasis omitted).

The Michigan Court of Appeals determined that, viewing the evidence in the light most

favorable to the prosecution, “a rational trier of fact could find that the essential elements of the

crime were proven beyond reasonable doubt” in Smith’s case. Smith, 2009 WL 3837414, at *4.

The court reasoned that, as a general matter, “circumstantial evidence and the reasonable

inferences it engenders are sufficient to support a conviction, provided the prosecution meets its

burden of proof.” Id. It concluded that the circumstantial evidence in this case—namely, the

testimony from Dennis and Evans—was sufficient to support Smith’s convictions, and it

declined to “second-guess” the jury’s determination that Dennis and Evans were credible. Id.

Smith argues that the testimony from Dennis and Evans, even viewed in the light most

favorable to the prosecution, could not engender a reasonable inference that Smith killed Ralston

with the intent to commit a larceny. Smith gives several reasons: Ralston had no safe in her

house and did not live at a drug safe house; she had no money; and nothing of value, including

Ralston’s jewelry box, was taken from the house.

These arguments, however, are reasons to reweigh the testimony of Dennis and Evans,

not to conclude that such evidence is insufficient.

According to Dennis and Evans, Smith

confessed to killing a woman in her fifties while attempting to rob her house, and Ralston’s son

and housemate both confirmed that Smith was at the house on the evening before Ralston’s body

was discovered. Smith now provides reasons that the jury could have disbelieved or discounted

Dennis’s and Evans’s testimony as inconsistent with other evidence in the record. But a court

evaluating a claim of insufficient evidence is not at liberty to reweigh the evidence or reassess

the credibility of witnesses. Brown, 567 F.3d at 205; see also Martin v. Mitchell, 280 F.3d 594,

618 (6th Cir. 2002) (“[Ajttacks on witness credibility are simply challenges to the quality of the

government’s evidence and not to the sufficiency of the evidence,

(quoting United States v.

Adamo, 742 F.2d 927, 935 (6th Cir. 1984))). Given that the Michigan Court of Appeals had to

resolve all conflicts in favor of the prosecution and accept the jury’s determination that Dennis

and Evans were credible, it was not unreasonable for that court to conclude that a rational juror

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could have convicted Smith. Therefore, we affirm the district court’s denial of habeas relief with

respect to Smith’s claim of insufficient evidence.

C.

Last, Smith claims that the state and district courts erred in refusing to consider the

affidavit of Robert Evans.

1.

We start by clarifying what it is that Smith is claiming. Smith refers to his claim as one

of “actual innocence” and cites to the Supreme Court’s decision in Schlup v. Delo, 513 U.S. 298

(1995). But the claim recognized in Schlup “is procedural, rather than substantive,” meaning

that it “does not by itself provide a basis for relief.” Id. at 314-15. Rather, a Schlup claim

provides a “gateway” for the habeas petitioner “to have his [or her] otherwise barred

constitutional claim considered on the merits.” Id. at 315 (quoting Herrera v. Collins, 506 U.S.

390, 404 (1993)).

Smith does not identify any substantive federal constitutional claim

underlying his alleged “actual innocence” claim. Thus, his claim is not a “gateway” actual

innocence claim under Schlup.

Smith’s claim also cannot be reviewed as a supplemental sufficiency-of-the-evidence

claim.

Smith tried to raise such a claim in his amended petition before the district court,

asserting that “based on newly discovered evidence, there was insufficient evidence to sustain

[his] convictions for felony-murder and assault with intent to rob while armed beyond a

reasonable doubt.” (R. 38, PagelD 906.) Smith argued that this claim of newly discovered

evidence “should be addressed together” with his separate sufficiency-of-the-evidence claim—

essentially arguing that the affidavit makes the already shaky evidence upon which he was

convicted even shakier. (Id., PagelD 907.) But a reviewing court evaluating a sufficiency-ofthe-evidence claim cannot consider newly discovered evidence. Rather, the court must consider

“the trial testimony and exhibits in the light most favorable to the prosecution,” and may not

reassess the weight of the evidence or the credibility of witnesses. Brown, 567 F.3d at 205; see

also Jackson, 443 U.S. 318-19; cf. Schlup, 513 U.S. at 330 (distinguishing between a claim of

insufficient evidence under Jackson, which prohibits assessments of witness credibility, and a

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gateway actual innocence claim under Schlup, which allows such assessments based on newly

presented evidence).

Because Smith’s claim of newly discovered evidence requires the

reviewing court to reweigh evidence and make a probabilistic determination of what a reasonable

trier of fact likely would do, it cannot be assessed as a supplemental sufficiency-of-the-evidence

claim.

We accordingly agree with the district court that Smith’s claim based on the affidavit of

Robert Evans is a freestanding actual innocence claim.

The Supreme Court has defined a

freestanding actual innocence claim as one that “argues that [the petitioner] is entitled to habeas

relief because newly discovered evidence shows that [the petitioner’s] conviction is factually

incorrect.” Herrera, 506 U.S. at 404. Smith’s claim based on the affidavit is exactly that.

2.

Next, we turn to the warden’s arguments that Smith’s claim is untimely and procedurally

defaulted. The warden argues that because Smith’s claim based on the affidavit was not raised in

federal court until Smith amended his petition in December 2017, and because the claim was not

otherwise tolled, it is barred under the one-year statute of limitations.

See 28 U.S.C.

§ 2244(d)(1). The warden also argues that because the state court relied on state procedural

grounds to deny Smith’s claim for a new trial based on the affidavit, Smith’s claim here is

procedurally barred. The district court acknowledged the warden’s procedural arguments but

decided to deny Smith’s claim on the merits.

Although issues of timeliness and procedural default in habeas proceedings ordinarily

should be addressed first, those issues do not affect our jurisdiction. Day v. McDonough, 547

U.S. 198, 205 (2006); Trest v. Cain, 522 U.S. 87, 89 (1997). Therefore, we may sometimes

reach the merits of a petitioner’s claim, particularly when the merits are easily resolvable against

the petitioner while the procedural issues are complicated.. See Lambrix v. Singletary, 520 U.S.

518, 525 (1997); see also, e.g., Bales v. Bell, 788 F.3d 568, 573 (6th Cir. 2015); Mahdi v. Bagley,

522 F.3d 631, 635 (6th Cir. 2008); Hudson v. Jones, 351 F.3d 212, 215-16 (6th Cir. 2003).

Here, resolution of the procedural issues is not necessary to our disposition of Smith’s

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freestanding actual innocence claim, and we agree with the district court that the claim is better

resolved on the merits. We turn there now.

3.

The Supreme Court has not answered whether freestanding actual innocence claims are

cognizable on habeas review. See House v. Bell, 547 U.S. 518, 555 (2006) (expressly declining

to resolve the issue). Our circuit, however, has “repeatedly indicated that such claims are not

cognizable on habeas.”

Cress v. Palmer, 484 F.3d 844, 854 (6th Cir. 2007) (listing cases).

Smith nevertheless invites us to resolve this question in his favor.

Even if we were to recognize a freestanding actual innocence claim, Smith’s claim based

on the affidavit would not succeed. The Supreme Court has noted that if freestanding actual

innocence claims were cognizable, the petitioner’s burden “would necessarily be extraordinarily

high.” Herrera, 506 U.S. at 417. This is because such a claim, unattached to any other claim of

constitutional error, presupposes that the petitioner “was tried before a jury of his [or her] peers,

with the full panoply of protections that our Constitution affords criminal defendants.” Id. at 419

(O’Connor, J., concurring).

Accordingly, the Ninth Circuit has established that a petitioner

asserting a freestanding actual innocence claim “must go beyond demonstrating doubt about his

[or her] guilt” and “must affirmatively prove that he [or she] is probably innocent.” Carriger v.

Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc).

Without the ability to make credibility determinations, we conclude that Smith does not

prove that he is probably innocent.

To be sure, the affidavit of Robert Evans seriously

undermines the reliability of Dennis’s and Evans’s testimony, but it falls short of affirmatively

proving that Smith is innocent. The affidavit does not provide Smith with an alibi, show that

someone else killed Ralston, or otherwise “preclude any possibility of [Smith’s] guilt.” See id. at

477. Instead, it simply gives us further reason to doubt Dennis’s and Evans’s testimony. Thus,

Smith’s claim based on the affidavit of Robert Evans is not a basis on which we can grant him

habeas relief.

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IV.

For the reasons above, we affirm the district court’s denial of Smith s petition for a writ

of habeas corpus.

APPENDIX' 14a thru 30a

0

Opinion of the United States District Court

for the Eastern District of Michigan

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KEITH BERNARD SMITH,

Petitioner,

Civil No. 2:11-CV-10261

HONORABLE ARTHUR J. TARNOW

UNITED STATES DISTRICT JUDGE

v.

KEVIN LINDSEY,

Respondent,

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS

CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY AND

LEAVE TO APPEAL IN FORMA PAUPERIS

Keith Bernard Smith, (“Petitioner”), confined at the Cotton Correctional

Facility in Jackson, Michigan, filed a petition for writ of habeas corpus pursuant to

28 U.S.C. § 2254. 1 In his pro se application, petitioner challenges his convictions

for first-degree felony murder, M.C.L.A. 750.316(b), and assault with intent to rob

while armed, M.C.L.A. 750.89. For the reasons that follow, the petition for writ of

habeas corpus is DENIED.

1

When petitioner originally filed his petition for writ of habeas corpus, he

was incarcerated at the Bellamy Creek Correctional Facility, but has since been

transferred to the Cotton Correctional Facility. The only proper respondent in a

habeas case is the habeas petitioner’s custodian, which in the case of an

incarcerated habeas petitioner would be the warden of the facility where the

petitioner is incarcerated. See Edwards Johns, 450 F. Supp. 2d 755, 757 (E.D.

Mich. 2006); See also Rule 2(a), 28 foil. U.S.C. § 2254. Therefore, the Court

substitutes Warden Kevin Lindsey in the caption.

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I. Background

Petitioner was convicted of the above offenses following a jury trial in the

Wayne County County Circuit Court. This Court recites verbatim the relevant

facts relied upon by the Michigan Court of Appeals, which are presumed correct

on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581

F.3d 410, 413 (6th Cir. 2009):

Defendant’s convictions arose as the result of the death of Annette

Ralston. An autopsy revealed Ralston died of a combination of multiple

stab, incised, and blunt force wounds, with the most immediate cause

of death likely being a severing of her left carotid artery. Defendant had

been acquainted with the victim for a period of a few weeks prior to her

death and he was often seen at her residence. The victim’s 15-year-old

son and the victim’s roommate both testified that defendant was

present in the victim’s home the evening before her body was

discovered.

At trial, two witnesses familiar with defendant testified that he had

arrived at their home a few days after the murder. At some point during

their conversation, defendant told both witnesses that he had done a

very bad thing and eventually admitted that he had killed a woman as

part of a robbery attempt. Both witnesses testified that defendant

provided details of the murder, including that he had used a knife and

had driven the victim’s son to his foster home prior to the murder. The

latter assertion was confirmed by the son at trial.

People v. Smith, No. 286701,2009 WL 3837414, at * 1 (Mich. Ct. App. Nov.

17, 2009).

Petitioner’s conviction was affirmed on appeal. Id., Iv. den. 485 Mich. 1130

779 N.W.2d 813(2010).

2

v’

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Petitioner filed a petition for writ of habeas corpus, which was held in

abeyance so that petitioner could return to the state courts to exhaust additional

claims.

A post-conviction motion for relief from judgment was filed on petitioner’s

behalf in the Wayne County Circuit Court. The motion was denied by the trial

court .People v. Smith, No. 08-003328-01-FC (Wayne Cty.Cir.Ct., Nov. 12, 2012).

Petitioner then filed a second motion for relief from judgment, which was

denied as an impermissibly filed successive motion for relief from judgment

pursuant to M.C.R. 6.502(G). People v. Smith, No. 08-003328-01-FC (Wayne

Cty.Cir.Ct., June 14, 2013).

Petitioner filed a motion for the state trial court to vacate its order denying

the first motion for relief from judgment and reissuing its opinion denying his

second motion for relief from judgment. The judge denied the motion. People v.

Smith, No. 08-003328-01-FC (Wayne Cty.Cir.Ct., Nov. 2, 2015).

The Michigan appellate courts denied petitioner leave to appeal. People v.

Smith, No. 331894 (Mich.Ct.App. June 27, 2016); Iv. den. 501 Mich. 901, 902

N.W. 2d 419 (2017).

On January 10, 2018, the Court granted petitioner’s motion to lift the stay

and granted his motion to amend the petition. Petitioner seeks habeas relief on

the following grounds:

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I. Petitioner was denied his federal and state constitutional right to a fair

trial by jury when the jurors were affected by extraneous information.

II. The state trial judge deprived Petitioner of his federal and state

constitutional right to a properly instructed jury.

III. There was insufficient evidence to support Petitioner’s convictions

for felony-murder and assault with intent to rob while armed.

IV. The state trial judge deprived Petitioner of his rights to due process

and an impartial jury when she allowed the jurors to submit questions

for witnesses during the course of trial.

V. The suppression of impeachment evidence favorable to Petitioner’s

defense violated due process.

VI. Based on newly discovered evidence, there was insufficient

evidence to sustain Petitioner’s convictions for felony-murder and

assault with intent to rob while armed.

VII. Habeas issues V & VI were not raised during Petitioner’s direct

appeal because he had ineffective assistance of counsel.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), imposes the following standard of review for

habeas cases:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the merits

in State court proceedings unless the adjudication of the claim(1)

resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2)

resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

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A decision of a state court is “contrary to” clearly established federal law if

the state court arrives at a conclusion opposite to that reached by the Supreme

Court on a question of law or if the state court decides a case differently than the

Supreme Court has on a set of materially indistinguishable facts. Williams v.

Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs

when “a state court decision unreasonably applies the law of [the Supreme

Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may

not “issue the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly.” Id. at 410-11. “[A] state court’s

determination that a claim lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011 )(citing Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)).

III. Discussion

A. The Court grants petitioner's motion to withdraw claims # Five

and Seven.

In his reply brief, petitioner concedes that his fifth claim alleging a violation

of Brady v. Maryland, 373 U.S. 83 (1963) appears to be without merit and

“surrenders on this claim and will not further waste the Court’s attention on it.”

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Doc. 42, PG ID 1186. Petitioner also concedes that his ineffective assistance of

appellate counsel claim is without merit. Id. Doc. 42, Pg ID 1187.

A habeas petitioner can withdraw a claim from a habeas petition as long

as he or she does so knowingly, voluntarily, and intelligently. Daniel v. Palmer,

719 F. Supp. 2d 817, 828 (E.D. Mich. 2010); rev’d on other grds sub nom. Daniel

v. Curtin, 499 F. App’x. 400 (6th Cir. 2012). The Court permits petitioner to

withdraw his fifth and seventh claims.

B. The statute of limitations/procedural default issue.

Respondent argued that petitioner’s fifth, sixth, and seventh claims were

barred by the statute of limitations and also procedurally defaulted. Petitioner

has withdrawn his fifth and seventh claims but not his sixth claim alleging newly

discovered evidence of actual innocence.

Although the issue of whether a claim is procedurally barred should

ordinarily be resolved first, “judicial economy sometimes dictates reaching the

merits [of a claim or claims] if the merits are easily resolvable against a petitioner

while the procedural bar issues are complicated.” Barrett v. Acevedo, 169 F. 3d

1155, 1162 (8th Cir. 1999)(internal citations omitted). Because the statute of

limitations does not constitute a jurisdictional bar to habeas review, a federal

court, can, in the interest of judicial economy, proceed to the merits of a habeas

petition. See Smith v. State of Ohio Dept, of Rehabilitation, 463 F. 3d 426, 429,

n. 2 (6th Cir. 2006). Procedural default is likewise not a jurisdictional bar to

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review of a habeas petition the merits. See Trest v. Cain, 522 U.S. 87, 89

(1997). This Court believes that it would be easier to address the merits of

petitioner's sixth claim.

C. Claim # 3. The extraneous influence claim.

Petitioner first argues that the trial judge erred in denying his motion for an

evidentiary hearing or a new trial based on an allegation of extraneous influence

on the jurors. Subsequent to the verdict, but prior to sentencing, a juror

contacted defense counsel and indicated that he had changed his vote from not

guilty to guilty based on discussions the jurors had over the sentence that

petitioner would likely receive if he were convicted.

In Remmerv. United States, 347 U.S. 227, 230 (1954), the Supreme

Court held that a trial court confronted with an allegation of external tampering or

contact with a juror during a trial about a matter pending before the jury “should

determine the circumstances, the impact [of the contact] upon the juror, and

whether or not it was prejudicial, in a hearing with all interested parties permitted

to participate.” Remmer placed the burden on the prosecution to rebut the

presumption that an extrinsic influence upon the jury prejudiced the defense.

However, in Smith v. Phillips, 455 U.S. 209 (1982), the Supreme Court

subsequently stated,“This Court has long held that the remedy for allegations of

juror partiality is a hearing in which the defendant has the opportunity to prove

actual bias.” Id. at 215. In the aftermath of Smith v. Phillips, the Sixth Circuit

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“has consistently held that Smith v. Phillips reinterpreted Remmer to shift the

burden of showing bias to the defendant rather than placing a heavy burden on

the government to show that an unauthorized contact was harmless.” U.S. v.

Walker, 1 F. 3d 423, 431 (6th Cir. 1993)(collecting cases). A Remmer hearing is

thus not required unless the defendant can show that the unauthorized juror

contact “created actual juror bias.” United States v. Frost, 125 F. 3d 346, 377

(6th Cir. 1997).

To be entitled to a Remmer hearing, a defendant “must do more than

simply raise the possibility of bias.” Jackson v. Bradshaw, 681 F. 3d 753, 766

(6th Cir. 2012). Instead, a defendant “must make a colorable claim of

extraneous influence,” that is, “one derived from specific knowledge about or a

relationship with either the parties or their witnesses.” Id. “Examples of

extraneous influences include ‘prior business dealings with the defendant,

applying to work for the local district attorney, conducting an [out-of-court]

experiment, and discussing the trial with an employee.’” Id. (internal quotation

omitted). A trial court “should consider the content of the allegations, the

seriousness of the alleged misconduct or bias, and the credibility of the source

when determining whether a hearing is required.” Kowalak v. Scutt, 712 F. Supp.

2d 657, 692 (E.D. Mich. 2010)(quoting Sims v. Rowland, 414 F.3d 1148, 1155

(9th Cir. 2005)(internal quotation omitted)). To be entitled to a post-trial hearing

on an extraneous influence claim, a defendant must “come [ ] forward with clear,

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strong, substantial and incontrovertible evidence that a specific, non-speculative

impropriety has occurred.” Id. (internal quotation omitted).

Moreover, “[s]ince the trial judge is in the best position to determine the

nature and extent of alleged jury misconduct, his decision on the scope of

proceedings necessary to discover misconduct is reviewed only for an abuse of

discretion.” United States v. Rigsby, 45 F. 3d 120, 125 (6th Cir. 1995)(quoting

United States v. Shackelford, 111 F. 2d 1141, 1145 (6th Cir. 1985)). Finally, in a

habeas corpus case, a state court’s findings on whether, and how, an

extraneous matter affected jury deliberations “deserve[ ] a ‘high measure of

deference.’” Mahoney v. Vondergritt, 938 F. 2d 1490, 1492(1 st Cir.

1991 )(quoting Rushen v. Spain, 464 U.S. 114, 120 (1983)).

Petitioner is not entitled to habeas relief because he failed to show that the

jurors were subjected to an extraneous influence. The Michigan Court of

Appeals, in rejecting petitioner’s claim, People v. Smith, 2009 WL 3837414, at *

2, noted that there was no allegation that a party outside of the jury panel

.J('.

approached the jurors and provided them information about possible penalties.

A juror is incompetent to impeach his or her verdict, except as to

extraneous prejudicial information or outside influence. United States v.

Gonzales, 227 F.3d 520, 523-524 (6th Cir. 2000)(citing to Mattox v. United

States, 146 U.S. 140, 149 (1892)); F.R.E. 606(b). Juror discussions about

possible penalties that a defendant might receive are internal influences that

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cannot be used to impeach a jury verdict in the absence of allegations that the

jurors received this information about possible sentences from an outside

source. Gonzales, 227 F. 3d at 526. In the absence of any evidence that the

jurors received their information concerning possible sentences from an outside

source, there was no basis for the judge to conduct a Remmer hearing. Id.

Petitioner is not entitled to relief on his first claim.

D. Claim # 2. The readback of testimony claim.

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

judge refused the jurors’ requests for the testimony of three witnesses to be read

back to them.

There is no federal constitutional law which requires that a jury be

provided with a witness’ testimony. See Bradley v. Birkett, 192 F. App’x. 468,

477 (6th Cir. 2006). The reason for this is that there is no U.S. Supreme Court

decision that requires judges to re-read testimony of witnesses or to provide

transcripts of their testimony to jurors upon their request. See Friday v. Straub,

175 F. Supp. 2d 933, 939 (E.D. Mich. 2001). A habeas petitioner’s claim that a

state trial court violated his or her right to a fair trial by refusing to grant a jury

request for transcripts is therefore not cognizable in a habeas proceeding.

Bradley, 192 F. App’x. at 477; Spalla v. Foltz, 615 F. Supp. 224, 233-34 (E.D.

Mich. 1985).

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Given the lack of holdings by the Supreme Court on the issue of whether a

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

transcripts of their testimony to jurors upon their request, the Michigan Court of

Appeals’ rejection of petitioner’s claim was not an unreasonable application of

clearly established federal law. See Wright v. Van Patten, 552 U.S. 120, 126

(2008); Carey v. Musladin, 549 U.S. 70, 77 ( 2006).

E. Claim # 3. The sufficiency of evidence claim.

Petitioner next contends that there was insufficient evidence to prove that

he was the person who murdered the complainant. The Michigan Court of

Appeals rejected the claim, finding that petitioner’s identity was established by

his confessions to two of the witnesses. People v. Smith, 2009 WL 3837414, at

*4.

It is beyond question that “the Due Process Clause protects the accused

against conviction except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged.” In Re Winship, 397

U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the

evidence to support a criminal conviction is, “whether the record evidence could

reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 318 (1979). A court need not “ask itself whether it

believes that the evidence at the trial established guilt beyond a reasonable

doubt.” Instead, the relevant question is whether, after viewing the evidence in

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the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Id. at 31819 (internal citation and footnote omitted)(emphasis in the original).

A federal habeas court may not overturn a state court decision that rejects

a sufficiency of the evidence claim merely because the federal court disagrees

with the state court’s resolution of that claim. Instead, a federal court may grant

habeas relief only if the state court decision was an objectively unreasonable

application of the Jackson standard. See Cavazos v. Smith, 565 U.S. 1, 2

(2011). “Because rational people can sometimes disagree, the inevitable

consequence of this settled law is that judges will sometimes encounter

convictions that they believe to be mistaken, but that they must nonetheless

uphold.” Id.

Under Michigan law, “[T]he identity of a defendant as the perpetrator of

the crimes charged is an element of the offense and must be proved beyond a

reasonable doubt.” Byrdv. Tessmer, 82 F. App’x. 147, 150 (6th Cir. 2003)(citing

People v. Turrell, 25 Mich. App. 646, 181 N.W.2d 655, 656 (1970)).

“[A]n admission by the accused identifying himself (or herself) as the

person involved in the (crime) is sufficient to sustain a guilty verdict when the

crime itself is shown by independent evidence.” United States v. Opdahl, 610 F.

2d 490, 494 (8th Cir. 1979); See Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir.

2000)(petitioner’s identity as murderer supported in part by evidence that he

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confessed several times to murdering sister); Sok v. Romanowski, 619 F. Supp.

2d 334, 351 (W.D. Mich. 2008)(evidence sufficient to establish petitioner’s

identity as armed robber where his admissions placed him at the location of the

crime); Hatchett v. Withrow, 185 F. Supp. 2d 753, 759 (E.D. Mich.

2002)(petitioner’s identity as perpetrator of crime supported in part by his

detailed confession to the crime).

To the extent that petitioner challenges the credibility of the prosecution

witnesses, he would not be entitled to relief. Attacks on witness credibility are

simply challenges to the quality of the prosecution’s evidence, and not to the

sufficiency of the evidence. Martin v. Mitchell, 280 F. 3d 594, 618 (6th Cir. 2002).

An assessment of the credibility of witnesses is generally beyond the scope of

federal habeas review of sufficiency of evidence claims. Gall v. Parker, 231 F. 3d

265, 286 (6th Cir. 2000). The mere existence of sufficient evidence to convict

therefore defeats a petitioner’s claim. Id. Any insufficiency of evidence claim that

rests on an allegation of the witnesses’ credibility, which is the province of the

finder of fact, does not entitle a habeas petitioner to relief. See Tyler v. Mitchell,

416 F. 3d 500, 505 (6th Cir. 2005). Petitioner is not entitled to relief on his third

claim.

F. Claim # 4. The jury being allowed to ask questions.

Petitioner alleges that the trial court abused its discretion when it permitted

the jurors to submit questions to the witnesses.

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Federal courts hold it is a matter of discretion to allow questions by jurors

in federal criminal trials. See discussion in United States v. Collins, 226 F.3d

457, 461 (6th Cir. 2000). There are no cases which indicate that questions by

jurors implicate a specific constitutional guarantee. There is no clearly

established federal law, as determined by the Supreme Court of the United

States, that holds that juror questioning of witnesses violates the Sixth or

Fourteenth Amendments. Mendoza v. Berghuis, 544 F.3d 650, 655-56 (6th Cir.

2008). See Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006)(no Supreme

Court precedent holds that juror questioning of witnesses violates the Sixth or

Fourteenth Amendments). Furthermore, “allowing jurors to ask questions during

criminal trials is permissible and best left to the discretion of the trial judge.”

United States v. Collins, Id. Juror questions are reviewed on habeas review for

a violation of due process. See Wheeler v. Jones, 59 F. App’x. 23, 30 (6th Cir.

2003)(internal citation omitted).

Petitioner has not established that any of the juror questions were

prejudicial or violated his right to due process. Petitioner is not entitled to

habeas relief on his fourth claim.

G. Claim # 6. The actual innocence claim.

Petitioner in his sixth claim argues that he is entitled to a writ of habeas

corpus because he is actually innocent of the crime. Petitioner’s actual

innocence claim is based on the affidavit of Robert Evans, signed on October

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11, 2012 and attached as Exhibit A to petitioner’s 2013 motion for relief from

judgment. See Doc. 41-3, Pg ID 1046. Mr. Evans claims that on February 17,

2008, he had a discussion with his sister Latoya Evans and her boyfriend

Shayne Dennis, the two prosecution witnesses who testified that petitioner

confessed to murdering the complainant. Mr. Evans avers that his sister and Mr.

Dennis told him that the police were looking for petitioner and that the two had

inquired whether there was a reward. Mr. Evans claims that his sister and Mr.

Dennis had said that petitioner had told them nothing about the crime other than

that the police wanted to speak with him. Mr. Evans claims “They then said fuck

him, because they would figure out how to get that money if they could.” Mr.

Evans alleges that his sister and her boyfriend fabricated petitioner’s

confessions to them so that they could get the reward money.

Mr. Evans’ proposed testimony could be used at most to impeach the

credibility of his sister and Mr. Dennis. Impeachment evidence does not provide

sufficient evidence of actual innocence to support a free-standing innocence

claim. See Calderon v. Thompson, 523 U.S. 538, 563 (1998)(newly discovered

impeachment evidence, which is “a step removed from evidence pertaining to

the crime itself,” “provides no basis for finding” actual innocence); Sawyer v.

Whitley, 505 U.S. 333, 349 (1992) (newly discovered impeachment evidence

“will seldom, if ever,” establish actual innocence). Petitioner is not entitled to

relief on his sixth claim.

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H. A certificate of appealability.

A habeas petitioner must receive a certificate of appealability (“COA”) in

order to appeal the denial of a habeas petition for relief from either a state or

federal conviction.2 28 U.S.C. §§ 2253(c)(1)(A), (B). A court may issue a COA

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

constitutional right.” 28 U.S.C. § 2253(c)(2). When a federal district court rejects

a habeas claim on the merits, the substantial showing threshold is met if the

petitioner demonstrates that reasonable jurists would find the district court's

assessment of the constitutional claim debatable or wrong. See Slack v.

McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by

demonstrating that... jurists could conclude the issues presented are adequate

to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.

322, 327 (2003). In applying this standard, a district court may not conduct a full

merits review, but must limit its examination to a threshold inquiry into the

underlying merit of the petitioner's claims. Id. at 336-37.

The Court concludes that jurists of reason would find its assessment of the

constitutional claims debatable or wrong. See Slack, 529 U.S. at 484-85. Any

2 Effective December 1, 2009, the newly created Rule 11 of the Rules

Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foil.

§ 2254, provides that “[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” Rule 11(a) 28

U.S.C. foil. § 2254.

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doubt regarding whether to grant a COA is resolved in favor of the habeas

petitioner, and the severity of the penalty may be considered in making that

determination. See Newton v. Dretke, 371 F. 3d 250, 253 (5th Cir. 2004). Any

doubts regarding the issuance of a COA in this case should be resolved in

petitioner’s favor, in light of the nonparolable life sentence that he is serving.

The Court issues petitioner a COA. Petitioner is also granted leave to proceed

on appeal in forma pauperis, as any appeal would be in good faith. See 28

U.S.C. § 1915(a)(3); Fed. R.App.24 (a); Foster v. Ludwick, 208 F. Supp. 2d 750,

765 (E.D. Mich. 2002).

IV. CONCLUSION

For the reasons stated above, this Court concludes that Petitioner Smith is

not entitled to federal-habeas relief on the claims presented in his petition.

Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is

DENIED WITH PREJUDICE. (Dkts. # 1, 38). The Court issues petitioner a

certificate of appealability and leave to proceed on appeal in forma pauperis.

s/Arthur J. Tarnow

HON. ARTHUR J. TARNOW

SENIOR UNITED STATES DISTRICT JUDGE

Dated: June 12, 2018

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KEITH BERNARD SMITH,

Petitioner,

v.

Civil No. 2:11-CV-10261

HONORABLE ARTHUR J. TARNOW

UNITED STATES DISTRICT JUDGE

KEVIN LINDSEY

Respondent,

JUDGMENT

The above entitled matter having come before the Court on a Petition for

Writ of Habeas Corpus and in accordance with the Memorandum Opinion and

Order entered on June 12, 2018.

IT IS ORDERED AND ADJUDGED that:

(1) the Petition for Writ of Habeas Corpus is DENIED WITH

PREJUDICE.

(2) A Certificate of Appealability is GRANTED.

(3) Petitioner is GRANTED Leave to Appeal In Forma Pauperis.

DAVID J. WEAVER

CLERK OF THE COURT

APPROVED:

s/Arthur J. Tarnow

HON. ARTHUR J. TARNOW

SENIOR UNITED STATES DISTRICT JUDGE

BY: s/C. Pickles

DEPUTY CLERK