Petition for Writ of Certiorari — Schenvisky James, Petitioner v. Sherman Campbell, Warden

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No. 20-1430

i .

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Nov 13, 2020

DEBORAH S. HUNT, Clerk

SCHENVISKY JAMES,

Petitioner-Appellant,

SHERMAN CAMPBELL, WARDEN,

Respondent-Appellee.

)

- )

ORDER

Before: BOGGS, STRANCH, and BUSH, Circuit Judges.

Schenvisky James petitions for rehearing en banc of this court's order entered on

September 17, 2020, denying his application for a certificate of appealability. The petition was

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

the petition, this panel issued an order announcing its conclusion that the original application was

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

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

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

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

APPENDIX A — A.l

No. 20-1430

■4

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT ____

FILED

SCHENVISKY JAMES,

)

Petitioner-Appellant,

SHERMAN CAMPBELL, Warden,

Respondent-Appellee.

Sep 17, 2020

DEBORAH S. HUNT, Clerk

ORDER

Before: MOORE, Circuit Judge.

Schenvisky James, a pro se Michigan prisoner, appeals the judgment of the district court

denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. James has filed an application

for a certificate of appealability (“COA”) in this court. See Fed. R. App. P. 22(b)(1).

In 1996, James was found guilty of second-degree murder, in violation of Michigan

Compiled Latvs § 750.317, and possession of a firearm during the commission of a felony, in

violation of Michigan Compiled Laws § 750.227b. The trial court imposed a term of imprisonment

of twenty-three to forty years on the murder conviction and a consecutive two-year term of

imprisonment for the firearm conviction. Following his conviction, James filed motions for a new

trial based on ineffective assistance of counsel and newly discovered evidence and for relief from

judgment, among other pleadings, which were all denied. James subsequently appealed his

conviction and sentence, but his appeal was dismissed for want of prosecution due to his failure to

timely file a brief. People v. Schenvisky, No. 197595 (Mich. Ct. App. Jan. 25,2000) (unpublished).

The Michigan Court of Appeals'denied rehearing, and the Michigan Supreme Court denied

James’s delayed application for leave to appeal.

James filed his habeas petition in 2001. The magistrate judge recommended that, because

the petition contained both exhausted and unexhausted claims, it be stayed pursuant to Palmer v.

APPENDIX A - A.2

No. 20-1430

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Carlion, 276 F.3d 777, 781 (6th Cir. 2002), to allow James to either abandon the unexhausted

claims or return to state court to exhaust them. James filed objections, asserting that requiring him

to return to state court was futile. On September 20,2004, the district court adopted the magistrate

judge’s recommendation and directed him to comply with the procedures of Palmer.

James did not return to the district court until 2015, when he filed a motion for relief from

judgment from the district court’s prior order staying his habeas petition. The district court

concluded that James “should never have been exiled to state court in the first place” and, because

a final order dismissing James’s habeas petition was*never entered, James was entitled to proceed

with his habeas case. The court therefore ordered that the case be administratively reopened.

James then requested, and was granted, permission to file an amended habeas petition,

which raised the following claims: (1) he was denied equal protection and due process when he

was denied the appointment of appellate counsel on direct appeal; (2) the evidence was insufficient

to support his conviction for second-degree murder; (3) his direct appeal was erroneously

dismissed; (4) the trial court lacked jurisdiction to convict him; (5) the state court failed to provide

him with unaltered trial transcripts; (6) the record does not establish that he knowingly waived his

right to appellate counsel or was competent to do so; and (7) the prosecutor committed misconduct.

After reviewing the merits of James’s claims, the magistrate judge recommended that James’s

petition be denied. The magistrate judge also recommended denying a CO A. Over James’s

objections, the district court adopted the magistrate judge’s report, denied James’s petition, denied

a COA, and denied several other pending motions James had filed.

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). He may do so by demonstrating that “reasonable

jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”

Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484

(2000)). “[A] COA does not require a showing that the appeal will succeed,” id. at 337; it is

sufficient for a petitioner to demonstrate that “the issues presented are adequate to deserve

encouragement to proceed further,” id. at 327 (citing Slack, 529 U.S. at 484).

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No. 20-1430

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In his first claim, James argued that he was denied equal protection and due process when

he was denied the appointment of counsel on direct appeal. His third claim alleged that his direct

appeal was erroneously dismissed by the state court for his failure to file a brief, despite the absence

of appellate counsel. His sixth claim alleged that the state court did not confirm that he knowingly

waived his right to appellate counsel or was competent to do so. The district court analyzed these

three claims together and concluded that the trial court adequately inquired into James’s desire to

represent himself on appeal and that his waiver of counsel was knowing, intelligent, and voluntary.

As a result, he was not denied the appointment of appellate counsel on appeal and his appeal was

not erroneously dismissed for his failure to comply with court rules.

Reasonable jurists would not debate the district court’s denial of these claims. The

Fourteenth Amendment guarantees a criminal defendant the right to counsel on his first appeal as

of right. Douglas v. California, 372 U.S. 353, 357-58 (1963). Although a defendant may waive

his right to appellate counsel, the waiver must be knowing, intelligent, and voluntary. Swenson v.

Bosler, 386 U.S. 258, 260 (1967) (per curiam). A waiver is knowing and intelligent where the

defendant possesses “a full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986). To be

voluntary, the defendant’s decision must be “the product of a free and deliberate choice,” id., which

is the case only if he is “aware of the dangers and disadvantages of self-representation,” Faretta v.

California, 422 U.S. 806, 835 (1975). Courts must “loo[k] at all of the circumstances surrounding

waiver of counsel to ensure that such waiver was knowing and intelligent.” James v. Brigano, 470

F.3d 636, 644 (6th Cir. 2006).

The circumstances demonstrated that James’s waiver of counsel was knowing and

intelligent.

First, the record contains evidence that James was well-educated and able to

understand the risks of self-representation. Second, James underwent a competency evaluation

’

and was determined to be competent. Third, James waived his right to appellate counsel by his

conduct. See Beatty v. Caruso, 64 F. App’x 945, 950-51 (6th Cir. 2003) (citing United States v.

Harris, 2 F.3d 1452, 1455 (7th Cir. 1993)). For example, James’s request to proceed in pro per

No. 20-1430

-4unequivocally indicated that he was aware that he had a right to have counsel appointed, explained

the reasons that he disagreed with appointed counsel, and informed the court that he “lackfed]

confidence and trust in any attorney’s motivation or sense of ethics to conscientiously protect [his]

rights of due process.” Moreover, James failed to request re-appointment of appellate counsel in

the trial court when instructed to do so by the Michigan Court of Appeals. Indeed, when the state

trial court denied James’s successive motion for relief from judgment—wherein he argued that he

did not waive his right to appellate counsel—in 2014, it explained that “counsel was appointed at

various intervals, and [James] fervently and repeatedly asserted his right to represent himself.”

Based on these facts, James has not made a substantial showing that his waiver of counsel was not

voluntary or intelligent, that he was denied the right to appellate counsel, or that his direct appeal

was erroneously dismissed for his own failure to timely file an appellate brief. These claims do

not deserve encouragement to proceed further.

In his,second habeas claim, James argued that the evidence was insufficient to support his

conviction for second-degree murder. At trial and in his petition, he argued that he did not shoot

at the victim, but at the ceiling, and that the bullet ricocheted and struck the victim. James asserted

that three witnesses—Corrine Cooks, Deborah Sanders, and George Sullivan—testified that the

victim’s death may have been an accident. He alleged that because these witnesses could not

establish that he acted with malice, the state failed to prove second-degree murder.

When reviewing a claim of insufficient evidence, the relevant inquiry is whether if, “after

v- ;> -

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). Under Michigan law, a second-degree murder conviction requires the

State to prove: “(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without

justification or excuse.” People v. Mayhew, 600 N.W.2d 370, 379 (Mich. Ct. App. 1999) (quoting

People v. Goecke, 579 N.W.2d 868, 878 (Mich. 1998)). “Malice is defined as the intent to kill,

the intent to cause great bodily harm, or the intent to do an act in wanton and wilful [sic] disregard

No. 20-1430

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of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.”

Goecke, 579 N.W.2d at 878.

Although James rightly asserts that some of the State’s witnesses considered that the

victim’s death could have been an accident, the evidence, when viewed in a light most favorable

to the prosecution, indicated that James pointed a gun toward the victim and that the gun

discharged. Lanning Davidson, the assistant medical examiner, also testified that the victim’s

cause of death was a bullet wound to the head and that, considering the wound track of the bullet,

the weapon that fired the bullet was held straight in front of the victim’s head when the fatal injury

occurred. “The offense of second-degree murder ‘does not require an actual intent to harm or kill,

but only the intent to do an act that is in obvious disregard of life-endangering consequences.’”

People v. Aldrich, 631 N.W.2d 67, 80 (Mich. Ct. App. 2001) (quoting People v. Mayhew, 600

N.W.2d 370, 379 (Mich. Ct. App. 1999)). Under Michigan law, jurors “can properly infer malice

from evidence that a defendant intentionally set in motion a force likely to cause death or great

bodily harm.” People v. Aaron, 299 N.W.2d 304, 327 (Mich. 1980). Reasonable jurists would

not debate that James’s act of pointing a loaded weapon toward the victim was an act taken in

wanton and willful disregard of the likelihood that a death or great bodily harm would result. See

Goecke, 579 N.W.2d at 878. This claim does not deserve encouragement to proceed further.

James next asserted that the prosecutor committed misconduct by failing to file a criminal

information that comported with Michigan law; elicited perjured testimony; withheld evidence of

a witftess’s statement to the police and Davidson’s autopsy report and notes, in violation of Brady

v. Maryland, 373 U.S. 83 (1963); improperly attacked his defense theory during closing argument;

and introduced improper character and “other acts” evidence.

Prosecutorial misconduct is

actionable where “the prosecutors’ [actions] ‘so infected the trial with unfairness as to make the

resulting conviction a denial of due process.’” Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2008)

(quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)).

James’s allegation that the criminal information filed against him was insufficient is an

issue of state law that is not properly brought on habeas review. A claim of state-law error is

No. 20-1430

-6■!

generally non-cognizable in a federal habeas proceeding. See Estelle v. McGuire, 502 U.S. 62,

67-68 (1991). This claim that the prosecution improperly filed such an information does not

deserve encouragement to proceed further.

James’s allegation that the prosecutor elicited perjured testimony also does not deserve

encouragement to proceed further. James argues that the prosecution elicited false testimony from

three witnesses because their testimony at trial was inconsistent with the wording of their prior

statements.

However, “mere inconsistencies in testimony by government witnesses do not

establish knowing use of false testimony.” Brooks v.'Tennessee, 626 F.3d 878, 895 (6th Cir. 2010)

(quoting Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998)).

James next claimed that the State withheld evidence of a witness’s statement to the police

and Davidson’s autopsy report and notes, in violation of Brady. In Brady, the Supreme Court held

that “suppression by the prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.” 373 U.S. at 87. The trial transcripts from James’s case,

however, made clear that the witness was questioned about the statement that was allegedly

suppressed and that James’s counsel questioned Davidson about his autopsy report. Because

James did not make a substantial showing that the challenged evidence was actually withheld,

reasonable jurists would not debate the district court’s denial of this claim.

James next claimed that the prosecutor committed misconduct during closing argument by

discounting James’s testimony that he fired his weapon at the ceiling and that the bullet struck the

victim after ricocheting. A prosecutor has leeway to argue “that the jury should arrive at a

particular conclusion based on the evidence.” United States v. Reid, 625 F.3d 977, 985 (6th Cir.

2010) (citing United States v. Henry, 545 F.3d 367, 379 (6th Cir. 2008) and Caldwell v. Russell,

181 F.3d 731, 737 (6th Cir. 1999)). Here, the prosecutor’s comments related to the evidence that

had been presented and did not result in a denial of due process.

James also challenged the prosecutor’s introduction of improper character and “other acts”

evidence. Even assuming the introduction of this evidence was improper, its introduction would

No. 20-1430

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not have been so extremely unfair that its admission would violate fundamental conceptions of

justice. See Dowling v. United States, 493 U.S. 342, 352-54 (1990). This claim does not deserve

encouragement to proceed further.

In his final claims, James argued that the trial court lacked jurisdiction to convict him and

that the state court failed to provide him with unaltered trial transcripts and failed to provide him

with any post-conviction transcripts. These claims do not deserve encouragement to proceed

further. James’s jurisdictional claim is based on state law, which is insufficient to serve as a basis

for federal habeas relief. Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000); see Will v. Egeler,

532 F.2d 1058, 1059 (6th Cir. 1976) (per curiam). James’s claim regarding altered transcripts is

supported by only speculation and his own recollection of the trial, which does not overcome the

presumption that a court reporter’s transcript is accurate. See United States v. Haque, 315 F. App’x

510, 524 (6th Cir. 2009); Abatino v. United States, 750 F.2d 1442, 1445 (9th Cir. 1985); United

States v. Hoffman, 607 F.2d 280, 286 (9th Cir. 1979). And James made no showing that he was

prejudiced by the alleged denial of post-conviction transcripts.

For the foregoing reasons, reasonable jurists would not debate the district court’s denial of

James’s habeas petition. His application for a COA is DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Case 4:01-cv-00098-PLM-SJB ECF No. 224 filed 03/18/20 PagelD.2827

Page 1 of 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Schenvisky James, #155610,

Plaintiff,

-vConnie Horton,

Defendant.

)

’v-'

No. 4:01-cv-98

Honorable Paul L. Maloney

JUDGMENT

In accordance with die order entered on this date (ECF No. 223), and pursuant to

Fed. R. Civ. P. 58, JUDGMENT hereby enters.

THIS ACTION IS TERMINATED.

IT IS SO ORDERED.

Dave: March 18. 2020

APPENDIX A —. A.3

■<r\

True Copy

Clerk

/s/ PauM^ Mak^jl District

Court

Paul E. Malqflg&em

Michigan

United Stat^^stritttijudge,

Certifiei

By___ ^

•Case 4:01-cv-00098-PLM-SJB ECF No. 223 filed 03/18/20 PagelD.2818 Page 1 of 9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Schenyisky James, #155610,

Plaintiff,

)

-v-

Connie Horton,

Defendant

)

No. 4:01-cv-98

Honorable Paul L. Maloney

OPINIO?1!

On July 19, 2019, United States Magistrate Judge Ellen S. Carmody1 issued a Report

& Recommendation (“R&R”) recoimnending diat die Court dismiss Petitioner Schenvisky

James’ petition for writ of habeas corpus (ECF No. 212). This matter is now before die Court

on James’ objection to die R&R (ECF No. 216), and several odier motions and objections

(ECF Nos. 205, 206, 218, 219). For die reasons to be discussed, die Court will overrule all

objections, adopt die R&R as die Opinion of die Court, deny die outstanding motions, and

deny James’ petition.

Legal Framework

Widi respect to a dispositive motion, a magistrate judge issues a report and

recommendation, rather tiian an order. After being served widi an R&R issued by a

magistrate judge, a party has fourteen days to file written objections to die proposed findings

and recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). A district court judge

Judge Carmody retired on November 1, 2019; Magistrate Judge Sally J. Berens is now assigned to die case.

APPENDIX A — A.3

Case 4:01-cv-00098-PLM-SJB ECF No. 223 filed 03/18/20 PagelD.2819 Page 2 of 9

reviews de novo

the portions of die R&R to which objections have been filed. 28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 72(b).

Only diose objections that are specific are entided to a de novo review under die

statute. Mira v.

Marshall, 806 F.2d 636,637 (6di Cir. 1986) (per curiam) (holding die district

court need not provide de novo review where die objections are frivolous, conclusive, or too

general because die burden is on die parties to “pinpoint diose portions of die magistrate’s

report diat die district court must specifically consider ) . Failure to file an objection results

in a waiver of die issue and die issue cannot be appealed. United States v. Sullivan, 431 F.3d

976, 984 (6di Cir. 2005); see also Thomas v. Am, 474 U.S. 140,155 (1985) (upholding die

Sixdi Circuit’s practice). The district court judge may accept, reject, or modify, in whole or

in part, die findings and recommendations made by die magistrate judge. 28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 72(b).

Analysis

James’ objection spans 49 pages and covers a wide variety of alleged issues m lus 1996

trial, appeal, and diis habeas proceeding. The objections can be grouped into tiiree main

categories: (1) errors in the form of tire R&R, (2) errors offset, and (3) errors of law.

1. Errors in the R&R itself

James brings two objections to die fonn of die R&R itself. Neidier have merit First,

he objects to die typographical error on page 13, where die R&R states dial it can “address

Peterson’s petition on die merits.” It is plain dial this is a typographical error; die R&R should

read “Petitioner” instead of “Peterson, ” This is of no consequence to die R&R’s analysis or

conclusions, so diis objection is overruled.

'Case 4:01-cv-00098-PLM-SJB ECF No. 223 filed 03/18/20 PagelD.2820 Page 3 of 9

James next argues that the magistrate judge erred by recharacterizing his claims. The

magistrate judge summarized each of James’ arguments in one sentence, radier than in die

paragraphs James used as headings. Each “recharacterized” claim is true to die core ofjames’

arguments; die magistrate judge simply stated die argument more concisely. The magistrate

judge did not treat James’ claims any differendy after die “restatement” The Court finds no

error in die R&R, so diis objection is overruled.

2. Errors of fact

James argues diat die magistrate judge mischaracterized his testimony and die

testimony of Deborah Sanders, Corinne Cooks, George Sullivan, and Patrick Nelson. James

argues diat die magistrate judge failed to include die word “accident” in die R&R, even

though-'each witness testified diat James’ actions may have been accidental. On die Court’s

de novo review of die testimony, die R&R does not mischaracterize die testimony given by

any witness. And diis evidence was reviewed in die context of James’ insufficient evidence

claim,"where die R&R appropriately viewed die evidence in die light most favorable to die

prosecution. See O’Hara v. Brigano, 499 F.3d 492, 499 (6tii Cir. 2007). The R&R

appropriately gave weight to die testimony diat James aimed his gun at die victim and shot

eidier him or die ceiling and discounted die testimony diat diese actions were accidental.

The Court finds no error in the R&R’s description of eyewitness testimony, so diis objection

is overruled.

v-*..

James next objects to die R&R’s inclusion of die testimony of medical examiner Dr.

Lanning Davidson, arguing diat lie was not a ballistics expert, so he should not have opined

about die way die victim was shot According to James, die inclusion of diis testimony in die

Case 4':01-cv-00098-PLM-SJB ECF No. 223 filed 03/18/20 PagelD.2821 Page 4 of 9

R&R was erroneous. The Court disagrees. On review of Dr. Davidson’s testimony, he clearly

testified diat he was not a ballistics expert, and that all he could determine from die autopsy

was whedier a weapon was discharged at very close range (ECF No. 189-4 at PageID.947948). Dr. Davidson testified that “die weapon diat was used to kill [die victim] was held at

least two feet away, but it could have been held any distance further away from him such diat

diere was no evidence of close range firing on his forehead.” (Id. PageID.948.) Dr. Davidson

did not testily about any ballistics or weaponry beyond diis opinion, which die Court finds

■

was widiin die bounds of his certification as an expert in forensic padiology (Id. at

PaigeID.945). James’ objection here is overruled.

Somewhat contrarily, James next objects to die “incomplete” nature of Dr. Davidson’s

testimony, arguing diat die testimony was improper because Dr. Davidson did not specifically

mention diat die bullet was “deformed” when it was extracted. This argument was raised and

addressed by die Magistrate Judge in James’ petition, so die court need not address it. See,

e.g., Nickelson v. Warden, Case No. l:ll-CV-00334, 2012 WL 700827 at *4 (S.D. Ohio

Mar. 1, 2012) (holding diat “objections to magistrate judges’ reports and recommendations

are not meant to be simply a vehicle to rehash arguments set fordi in die petition.”).

Regardless, die Court, finds no error in die R&R regarding die content of Dr. Davidson’s

testimony. This objection is overruled.

James’ final objection regarding Dr. Davidson is, confusingly, diat Dr. Davidson did

not actually testily about where die weapon was in relation to die victim: he argues diat diis

testimony was fraudulendy inserted into die record. There is simply no evidence of transcript

alteration beyond James’ own assertions about it, so diis objection is overruled.

'Case 4:01-cv-00098-PLM-SJB ECF No. 223 filed 03/18/20 PagelD.2822 Page 5 of 9

James combines all of these objections to argue that die magistrate judge erred by

finding diat his convictions were supported by sufficient evidence. On die Court’s de novo

review of die record, taking all reasonable inferences in favor of die prosecution and having

found diat die individual objections are meridess, die Court agrees widi Magistrate Judge

Carmody and finds diat James’ convictions were supported by sufficient evidence. This

objection is overruled.

James also objects to die “bad man character evidence” presented at liis trial,

including testimony diat lie may have been selling drugs and/or working as a pimp. James

argues diat diis evidence was false, as contrasted by his testimony diat he was a law-abiding

citizen. Given diat die “bad man” evidence was introduced by direct testimony from

witnesses, and liis good character evidence was introduced by his own testimony, James’

character was a credibility determination for die jury to make. The R&R properly considered

diis evidence, and diere was no error in die R&R on diis point This objection is overruled.

James’ final fact-based objection is diat die R&R failed to recognize diat nearly all of

die transcripts have been altered or falsified. Again, James presents no credible evidence to

support diis claim, so diis objection is overruled.

3. Errors of Law

James argues diat die trial judge erred by instructing die jury diat malice may be *

inferred by his use of a dangerous weapon. However, James has failed to recognize an

important distinction: under Michigan law, a jury need not necessarily infer malice from die

use of a deadly weapon, but malice maybe inferred from die use of such a weapon. See, e.g.,

People v. Jordan, Case No. 172267, 1997 WL 33350698 at *1 (Mich. Ct App. Apr. 29,

*n .

'Case 4:01-cv-00098-PLM-SJB ECF No. 223 filed 03/18/20 PagelD.2823 Page 6 of 9

*. . ^

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1997). The judge did not instruct die jury diat it must find malice because of die use of a

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dangerous weapon; die trial judge properly instructed die jury diat it may find malice (ECF

No. 189-6 at PageID.1209). There was no error at trial, diere is no error in die R&R, and

diis objection is overruled.

James next argues that die elements of second-degree murder are unconstitutionally

vague because die statute diat codifies common-law murder simply states diat murder that'

does not meet die elements of first-degree murder is second-degree murder. MCL 750.317.

To establish second-degree murder, die prosecution must show diat die defendant killed a

human being widi malice aforediought In order to show malice aforediought, die

prosecution must establish one of diree mental states on die part of die defendant at die time

of die killing: (1) intent to kill; (2) intent to commit great bodily harm; or (3) intent to create

a very high risk of deadi or great bodily harm widi die knowledge diat deatii or great bodily

harm is die probable result See, e.g., People v Dykhouse, 418 Mich. 488, 495-96, 345

N.W.2d 150,151-2 (1984); People vAaron, 409 Mich. 672, 713-14, 299 N.W.2d 304, 31920 (1980). This is not unconstitutionally vague, nor is die codifying statute. This objection is

overruled.

James next argues that die R&R erred when it determined that his claim diat die state

court lacked jurisdiction to conduct his criminal trial was meridess. He argues diat because

he was bound over widiout probable cause, die trial court did not have jurisdiction to try and

convict him. However, James raised diis issue on direct appeal, and die Michigan Court of

Appeals determined diat die trial court did have jurisdiction to try and convict him. As die

magistrate judge stated, “a state court’s interpretation of state jurisdictional issues conclusively

Case _4:01-cv-00098-PLM-SJB ECF No. 223 filed 03/18/20 PagelD.2824 Page 7 of 9

establishes jurisdiction for purposes of federal habeas review.” Strunk v. Martin, 27 F. App’x

473,475 (6th Cir. 2001). Therefore, tins issue is not cognizable in the federal habeas petition,

and this objection is overruled.

James’ final objection regards die R&R’s conclusion that he knowingly, voluntarily,

and intelligently waived his right to appellate counsel. On die Court’s de novo review of die

record, James’ actions demonstrate a continued, intentional effort to represent himself.

James moved to represent himself and reiterated diis intent on multiple occasions before die

trial judge. There is nodiing in die record diat suggests that James did not knowingly,

intelligently, and voluntarily waive his right to counsel at trial or on appeal. There is no error

in die R&R, so diis objection is overruled.

Given die above analysis, die Court finds diat diere are no errors in die R&R, and

James’ objection (ECF No. 216) will be overruled in full.

The remaining docket items are as follows: a motion to correct diis Court’s March

22, 2019 Order (ECF No. 205), a motion for summary judgment (ECF No. 206), an

objection to die magistrate judge’s denial ofJames’ request for an evidentiary hearing (ECF

No. 218), and an objection to die magistrate judge’s denial of James’ request for discovery

(ECF No. 219). None of these filings have merit.

First, James’ motion to correct die Court’s March 22, 2019 order: James argues diat

die March 22 order contains an error of fact because it states diat James received an earlier

order (ECF No. 171), and Jamescdid not actually receive a copy. The earlier order granted

James’ motion to file an amended petition for writ of habeas corpus. Given diat James has

since received a copy of die earlier order, has been granted an extension of time to file his

y>m-

Case 4:01-cv=00098-PLM-SJB ECF No. 223 filed 03/18/20 PagelD.2825 Page 8 of 9

amended petition (ECF No. 172), and has since filed his amended petition (ECF No. 181),

die Court finds diat diere is no need to correct die March 22, 2019 order. This motion will

be dismissed as moot

Second, James’ objects to die magistrate judge’s denial of his requestfor an evidentiary

hearing. However, die Court agrees widi die magistrate judge’s conclusion diatJames has not

shown diat his claim relies on a new rule of constitutional law or newly discovered evidence,

nor has he shown diat die evidence he seeks to introduce would establish by clear and

convincing-evidence diat absent constitutional error, no reasonable factfinder would have

found him guilty. See 28 U.S.C. § 2254(e)(2). There is no error in die magistrate judge’s

decision; this objection will be overruled.

Third, James objects to die magistrate judge’s denial of his request for discovery. The

Court agrees widi die magistrate judge’s conclusion diat no undeveloped facts may lead die

court to believe diat habeas relief is appropriate. There is no error in die magistrate judge’s

decision; diis objection will be overruled.

Finally, James’ motion for summary judgment: given die Court’s decision on James’

objections and die Court’s decision to adopt die R&R as die opinion of die Court, die motion

for summary judgment is moot and will he dismissed as such.

ORDER

IT IS ORDERED diat die July 9, 2019 R&R (ECF No. 212) is ADOPTED as die

opinion of die Court.

IT IS FURTHER ORDERED diat Plaintiff’s objection to die R&R (ECF No. 216)

is OVERRULED.

Case 4:01-cv-00098-PLM-SJB ECF No. 223 filed 03/18/20 PagelD.2826 Page 9 of 9

IT IS FURTHER ORDERED that James’ motion to correct (ECF No. 205) and

motion for summary judgment (ECF No. 206) are DISMISSED AS MOOT.

IT IS FURTHER ORDERED that James’ objections to die magistrate judge’s orders

(ECF Nos 218, 219) are OVERRULED.

Judgment to follow.

; '^U// /

\Certified asaTrue Copy

mS SO ORDERED.

/s/ Paul 1.. Maloneifippufy Clerk

Paul L. Maloney U.S. District Court

United States^ffi?£PjRll^e<)^Mipt,|9an

. Date

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Date: March 18. 2020

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Case 4:01-cv-000S8-PLM-ESC ECF No. 212 filed 07/09/19 . PagelD.2673 Page 1 of 36

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

}

SCHENVISKY JAMES #155610,

Petitioner,

Hon. Paul L. Maloney

Case No. 4:01-CV-98

CONNIE HORTON,

Respondent.

REPORT AND RECOMMENDATION

This matter is before the Court on James’ petition for writ of habeas corpus. In

accordance with 28 U.S.C. § 636(b) authorizing United States Magistrate Judges to submit

proposed findings of fact and recommendations for disposition of prisoner petitions, the

undersigned recommends that James’ petition be denied.

BACKGROUND

As a result of events occurring on or about January 1, 1996, Petitioner was charged

\ with the second degree murder of A1 Kendrick and possession of a firearm during the„commission

ofafelony. (ECFNo. 189-4 at PageID.820-21). Several people testified at Petitioner’s jury trial.

The relevant portions of their testimony are summarized below.

Lawrence Poole

Poole was a brother to A1 Kendrick. (ECF No. 189-4 at PageID.925). On January

9, 1996, Poole identified Kendrick’s body at the morgue. (Id.). At the time of his death,

*•

Kendrick was approximately five feet, eleven inches tall and\veighed approximately 160 pounds.

(Id.).

™ 1

APPENDIX A - A.4

•

■

• i.1

’

Case 4:01-cv-Q0098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2674 Page 2 of 36

Marlene Irby

As of January 1, 1996, Kendrick and Irby shared a residence and had been in a

relationship for approximately three years. (ECF No. 189-4 at PageID.926-27). Petitioner and

Kendrick were friends. (Id. at PageID.928). Petitioner owned a house on Commonwealth Street.

(Id. at ’PageID.927).

Kendrick used crack cocaine and would often go to Petitioner’s

Commonwealth Street house to use drugs.

(Id. at PageID.928-29).

On January 1, 1996,

Kendrick went to Petitioner’s Commonwealth Street house several times. (Id. at PageID.929-37).

Irby last saw Kendrick at approximately 11:30 p.m. on January 1, 1996, when Kendrick departed

for Petitioner’s Commonwealth Street house. (Id. at PageID.937).

Lanning Davidson

-i

As of January 9, 1996, Davidson was employed as a Wayne County Assistant

* Medical Examiner. (ECF No. 189-4 at PageID.945-46). On this date, Davidson performed an

autopsy of A1 Kendrick’s body. (Id. at PageID.946-51). Davidson determined that Kendrick

died as a result “of a single gunshot wound to the head” fired from a weapon which had been held

straight in front of Mr. Kendrick[‘s] forehead when his fatal injury occurred.” (Id. at PageID.95051). Moreover, because “there was no evidence of close range firing” of the fatal shot, Davidson

ruled out suicide as the cause of Kendrick’s death. (Id. at PageID.951).

Deborah Sanders

As of January 1,1996, Sanders had recently moved into the house Petitioner owned

at 5985 Commonwealth. (ECF No. 189-4 at PageID.958-59). Sanders earned the money to pay

her rent, in part, by “engaging] in acts of prostitution.” (Id. at PageID.959-60). A man named

Joe also resided at 5985 Commonwealth. (Id. at PageID.961). Joe’s “unspoken job” was “to be

• S'

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2675 Page 3 of 36

the man of the house. . .because there were only women living at the house.” (Id.). Joe was

responsible for making sure that “no danger came to” any of the women living at the house. (Id.).

On January 1, 1996, A1 Kendrick was present at 5985 Commonwealth. (Id. at

PageID.960-61).

At some point that evening, Kendrick began fighting with Joe.

(Id. at

PageID.964-69).. Petitioner entered the residence a few minutes later at which point the fight

between Joe and Kendrick ceased. (Id. at PagelD.969-70). Petitioner asked, “what the fuck is

■*

going on?’ in response to which Kendrick stated “something to the effect of let me explain or like,

you know.” (Id. at PagelD.971). Kendrick did not threaten Petitioner, but Petitioner nonetheless

drew a gun and shot Kendrick. (Id. atPageID.971-78). Kendrick’s body was then removed from

the house. (Id. at PageID.976).

George Sullivan

Sullivan, also known as Joe, often provided “security” for Petitioner at 5985

Commonwealth. (ECF No. 189-5 at PageID.1012-14). Sullivan encountered A1 Kendrick at

5985 Commonwealth on the afternoon of January 1, 1996. (Id. at PagelD. 1014-15). Later that

evening, Kendrick departed to buy beer. (Id. at PagelD. 1015-16). When Kendrick returned, he «

began attacking Sullivan and screaming “why are you telling lies about me?”

(Id. at

PagelD.1016-17).

Shortly thereafter, Petitioner entered the residence and asked, “what’s going on?”

(Id. at PagelD.1017-18). Sullivan then heard “a gun shot” at which point Kendrick “fell down.”

(Id. at PageID.1018). Sullivan did not see who shot Kendrick, but observed that Petitioner was

the only person holding a gun. (Id. at PagelD.1018-19). Petitioner then instructed Sullivan to

move Kendrick’s body from the house. (Id. at PageID.1019). Sullivan placed Kendrick’s body

in Petitioner’s vehicle after which Petitioner drove away. (Id. at PagelD.1019-21). The “girls”

•

"■

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2676 Page 4 of 36

that lived at 5985 Commonwealth “cleaned up the house” after Kendrick’s body was removed.

(Id. at PagelD. 1022-23).

Patrick Nelson

As of January 3, 1996, Nelson was employed as a police officer. (ECF No. 189-5

at PagelD. 1026). On this date, Nelson spoke with Deborah Sanders. (Id). Sanders told Nelson

about a shooting that occurred “at an address on Commonwealth.”

(Id at PagelD. 1027).

Sanders told Nelson that the shooting in question was committed by a black male known as

Reverend.” (Id.). Sanders further indicated that “Reverend” ordered her and Tanisha Kramer

to “scrub the kitchen floor of the address on Commonwealth to get rid of the evidence.” (Id. at

PagelD.1028). Sanders indicated that after Kendrick was killed, “Reverend” “[g]ave her drugs to

stay high and keep her in the house so she would not leave or call the police.” (Id. at PagelD. 102829).

Corine Cooks

As of January 1, 1996, Cooks had been working as a prostitute at 5985

Commonwealth for approximately three months.

(ECF No. 189-5 at. PageID.1034-35).

Petitioner, who referred to himself as Reverend, also supplied Cooks with drugs. (Id). Joe

worked at 5985 Commonwealth to provide security. (Id. at PagelD. 1035-36).

On January 1, 1996, a man named Al was at 5985 Commonwealth.

(Id. at

PagelD.1038-39). At some point that evening, Al departed to purchase beer and crack cocaine.

(Id. at PageID.1039). Wh,en Al returned to the residence he began fighting with Joe. (Id. at

PageID.1039-42). When Petitioner later entered the residence and observed this fight, Petitioner

stated, with respect to Al, “I’m tired of this motherfucker coming over trying £tb take over the

house.” (Id. at PagelD. 1042-.43). Petitioner then shot Al. (Id. at PagelD. 1043-45)., Petitioner

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2677 Page 5 of 36

later asked Cooks, “do you think you can handle it?,” immediately adding, “if you can’t handle it,

I’ll handle it for you,” (Id. at PageID.1049).

Randy Richardson

As of January 10, 1996, Richardson was employed as a Detroit Police Officer

Evidence Technician. (ECF No. 189-5'at PageID.1057). On this date, Richardson conducted a

search at 5985 Commonwealth.

(Id. at PagelD. 1057-58).

During this search, Richardson

recovered a maroon-colored baseball hat and a pair of work gloves. (Id. at PagelD. 105 8-5 9).

These items were located “inside of a trash dumpster next to the front porch.”

(Id. at

PageID.1059). The baseball hat “had suspected blood” on if. (Id. at PagelD. 1060).

Marlene Irby

Irby identified the baseball hat recovered by Richardson as belonging to A1

Kendrick. (ECF No. 189-5 at PageID.1060-61).

Jason Kleinsorge

As of January 8,1996, Kleinsorge was employed as a Detroit Police Officer. (ECF

No. 189-5 at PagelD. 1062-63). On this date, Kleinsorge was dispatched to investigate a body 'n

located in an alley. (Id. at PagelD. 1063). The body was frozen and “had what appeared to be a

small caliber bullet wound over his |eft eye.” (Id. at PagelD. 1063-64).

Ricky Harrison

As of January 8, 1996, Harrison was employed as a Detroit Police Officer. (ECF

No. 189-5 at PagelD. 1069)'f*On this date, Harrison learned that a body .had been discovered in an

alley. (Id.). The following day, Harrison spoke with Marlene Irby. (Id. at 'PagelD. 1070). On

January 11, 1996, Harrison spoke with Petitioner. (Id. at PagelD. 1070-74). Petitioner was

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2678 Page 6 of 36

informed of his Miranda rights after which he agreed to speak with Harrison.

(Id. at

PagelD. 1072-77). In his statement to Harrison, Petitioner asserted the following.

On January 1,1996, A1 Kendrick contacted Petitioner to talk “about something that

[Kendrick] was agitated about.” (Id. at PagelD. 1077-78). Petitioner “begrudgingly” agreed to

meet Kendrick at 5985 Commonwealth. (Id. at PagelD. 1078). When Petitioner arrived at this

location, he observed Kendrick and Joe fighting. (Id.). Petitioner then shot his gun “into the

air.” (Id.). Petitioner “really could not believe that [Kendrick] was shot because [Petitioner]

thought [he] had shot into the air.” (Id.). Petitioner “just wanted to shoot and get their attention.”

(Id. at PagelD. 1079). Once Petitioner realized that Kendrick was dead, Petitioner “panicked” and

dumped Kendrick’s body in an alley. (Id.).

Monica Childs

As of January 12, 1996, Childs was employed as a Detroit Police Officer. (ECF

No. 189-6 at PagelD. 1102). On this date, Childs interviewed Petitioner. (Id.). Childs informed

Petitioner of his Miranda rights after which Petitioner agreed to speak with Childs. (Id. at

PagelD. 1102-03). In his statement to Childs, Petitioner asserted the following.

Petitioner collected rent from the women who lived at 5985 Commonwealth. (Id.

at PageID.1106-07). The women who resided there “all smoked crack and turned tricks.” (Id

at PagelD. 1107). There “is a guy there named Joe who stays there off and on and he is the male

presence, sort of a protector for the girls.” (Id.). A1 Kendrick “would hang out over there and

smoke crack and he liked being around the girls.” (Id.).

When Petitioner entered 5985 Commonwealth on January 1, 1996, Joe and

Kendrick were “arguing.” (Id.). Neither Joe nor Kendrick were armed with a weapon. (Id.).

Petitioner “was trying to get their attention,” but the pair “was still shouting back and forth.” (Id.).

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2679 Page 7 of 36

Petitioner then fired his weapon “at a space over Al’s head.” (Id.). Petitioner then disposed of

Kendrick’s body by dumping it in an alley. (Id. at PagelD. 1108).

Schenvisky James

As of January 1, 1996, Petitioner and A1 Kendrick were friends. (ECF No. 189-6

at PageID.1116-17). On this date, Kendrick telephoned Petitioner and asked Petitioner to “come

over to his house and pick him up.” (Id. at PageID.1117). Kendrick “sounded agitated about

something” and stated, “at this point I don’t have nothing to lose.” (Id. at PagelD. 1117-18).

Petitioner declined to pick up Kendrick, at which point Kendrick said he “was going to walk over

to the house anyway.” (Id. at PageID.1118). Petitioner later became concerned because he

thought Kendrick “was going to hurt hisself or something.” (Id.). Petitioner, therefore, decided

to go to 5985 Commonwealth. (Id.).

When Petitioner arrived at the house, one of the women informed him that “they’re

beating Joe.” (Id. at PagelD. 1118-19). Petitioner then observed Kendrick exit the dining room

with “a knife in his right hand.” (Id. at PagelD. 1119). Kendrick attempted to say something to

Petitioner, who responded by instructing Kendrick to “get the f- - - out of here.” (Id.). Kendrick

then “tried to take like a quick little step toward [Petitioner] and [Petitioner] shot the gun up in the

air.”

(Id.).

Petitioner, however, “never pointed that gun at Al,” but was instead simply

attempting to fire “a warning shot.” (Id.). Petitioner “was very confused about what happened”

because he “kn[e]w definitely for sure” that he did not shot Kendrick. (Id. at PagelD. 1120).

Petitioner then realized that “the bullet bounced off of the wall and hit Al, that’s what they call a

ricochet.” (Id.).

Petitioner also asserted that the statement he allegedly provided to Officer Childs

was a fabrication. (Id. at PagelD. 1123). Petitioner conceded that he signed the statement in

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2680 Page 8 of 36

question, apparently confirming its accuracy, but asserted that he did not have his eyeglasses at

the time and, therefore, could not actually read the statement he was signing. (Id. at PagelD.112326). Petitioner instead “trusted” Childs’ description as to the statements’ contents. (Id.).

Monica Childs

Officer Childs was recalled as a rebuttal witness.

Childs reiterated that the

statement about which she previously testified was comprised of Petitioner’s statements to her.

(Id. at PagelD. 1140-44). Childs further reiterated that Petitioner was afforded an opportunity to

review his statement and make any additions or corrections thereto. (Id.). Finally, Childs

testified that Petitioner never indicated that he was unable to read the statement in question because

he did not have his eyeglasses. (Id.).

Following the presentation of evidence, the jury found Petitioner guilty of seconddegree murder and possession of a firearm during the commission of a felony. (ECF No. 189-7

at PagelD.1234-37). Petitioner was sentenced as a habitual offender to serve 23-40 years in

prison on the second-degree murder conviction and two years on the possession of a firearm during

the commission of a felony conviction. (ECF No. 189-8 at PagelD. 1279).

Petitioner initiated this matter in 2001, asserting numerous claims. (ECF No. 1,

11). This matter was stayed and administratively closed in 2004. (ECF No. 105,117). The stay

in the matter was lifted on March 10, 2017, after which the case was re-opened. (ECF No. 164).

On August 22, 2018, James filed a second amended petition, (ECF No. 181), in which he asserts

the following claims;

Petitioner was denied appointment of appellate counsel on

direct appeal.

II.

Petitioner’s conviction is not supported by legally sufficient

evidence.

III.

Petitioner’s appeal of right was improperly dismissed.

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2681 Page 9 of 36

IV.

The Michigan courts lack jurisdiction in this matter

rendering illegal Petitioner’s conviction and incarceration.

The state courts refused to provide Petitioner with

“unaltered” versions of the relevant trial transcripts.

VI.

Petitioner’s waiver of his right to the assistance of appellate

counsel was not voluntary, knowing, and intelligent.

VII.

The prosecutor engaged in misconduct thereby depriving

Petitioner of the right to a fair trial.

STANDARD OF REVIEW

James’ petition is subject to the provisions of the Antiterrorism and Effective Death

Penalty Act (AEDPA), as it amended 28 U.S.C. § 2254. The AEDPA amended the substantive

standards for granting habeas relief under the following provisions:

(d)

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.

28 U.S.C. § 2254(d).

The AEDPA has “modified” the role of the federal courts in habeas proceedings to

"prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the

extent possible under law.” Bell v. Cone, 535 U:S. 685, 693 (2002). As the Supreme Court

recently emphasized, this standard is “intentionally difficult to meet.” Woods v. Donald, 135

S.Ct. 1372, 1376

(2015) (internal quotation omitted).

Pursuant to § 2254(d)(1), a decision is "contrary to” clearly established federal law

when “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2682 Page 10 of 36

question of law” or “if the state court confronts facts that are materially indistinguishable from a

relevant Supreme Court precedent and arrives at an opposite result.” Ayers v. Hudson, 623 F.3d

301, 307 (6th Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)).

Prior to Williams, the Sixth Circuit interpreted the “unreasonable application”

clause of § 2254(d)(1) as precluding habeas relief unless the state court’s decision was “so clearly

incorrect that it would not be debatable among reasonable jurists.” Gordon v. Kelly, 2000 WL

145144 at *4 (6th Cir., February 1, 2000); see also, Blanton v. Elo, 186 F.3d 712, 714-15 (6th Cir.

1999). The Williams Court rejected this standard, indicating that it improperly transformed the

“unreasonable application” examination into a subjective inquiry turning on whether “at least one

of the Nation’s jurists has applied the relevant federal law in the same manner” as did the state

court. fUZ/m/ws, 529 U.S. at 409.

In articulating the proper standard, the Court held that a writ may not issue simply

because the reviewing court “concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S.

at 411. Rather, the Court must also find the state court’s application thereof to be objectively

unreasonable. Bell, 535 U.S. at 694; Williams, 529 U.S. at 409-12. Accordingly, a state court

unreasonably applies clearly established federal law if it “identifies the correct governing legal

principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts

of the prisoner’s case” or if it "either unreasonably extends or unreasonably refuses to extend a

legal principle from the Supreme Court precedent to a new context.” Ayers, 623 F.3d at 307.

Furthermore, review under § 2254(d)(1) “is limited to the record that was before the state court

that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170,181 (2011).

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2683 Page 11 of 36

Pursuant to 28 U.S.C. § 2254(d)(2), when reviewing whether the decision of the

state court was based on an unreasonable determination of the facts in light of the evidence

presented, the “factual determination by [the] state courts are presumed correct absent clear and

convincing evidence to the contrary."

Ayers, 623 F.3d at 308.

Accordingly, a decision

“adjudicated on the merits in a state court and based on a factual determination will not be

overturned on factual grounds unless objectively unreasonable in light of the evidence presented

in the state-court proceeding.” While this standard is demanding it is not insatiable.

Id.

For a writ to issue pursuant to § 2254(d)(1), the Court must find a violation of clearly established

federal law “as set forth by the Supreme Court at the time the state court rendered its decision.”

Stewart v. Irwin, 503 F.3d 488,493 (6th Cir. 2007). This definition of "clearly established federal

law” includes “only the holdings of the Supreme Court, rather than its dicta.” Bailey v. Mitchell,

271 F.3d 652, 655 (6th Cir. 2001). Nevertheless, “the decisions of lower federal courts may be

instructive in assessing the reasonableness of a state court’s resolution of an issue.” Stewart, 503

F.3d at 493.

As previously noted, § 2254(d) provides that habeas relief “shall not be granted

with respect to any claim that was adjudicated on the merits” unless the petitioner can satisfy the

requirements of either § 2254(d)(1) or § 2254(d)(2). This provision, however, “does not require

a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the

merits.”’ Harrington v. Richter, 562 U.S. 86,100 (2011). Instead, when a federal claim has been

presented to a state court and the state court has denied relief, “it may be presumed that the state

court adjudicated the claim on the merits.” Id. at 99. Where such is the case, the Court must

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2684 Page 12 of 36

apply the deferential standard of review articulated above, rather than some other less deferential

standard.

The presumption that the state court “adjudicated [a] claim on the merits” may be

overcome only “when there is reason to think some other explanation for the state court’s decision

is more likely.”. Id. at 99-100. If this presumption is overcome, however, the Court reviews the

matter de novo. See Wiggins v. Smith, 539 U.S. 510, 533-35 (2003) (reviewing habeas issue de

novo where state courts had not reached the question); see also, Maples v. Stegall, 340 F.3d 433,

437 (6th Cir. 2003) (recognizing that Wiggins established de novo standard of review for any claim

that was not addressed by the state courts).

ANALYSIS

Procedural Default

Under the procedural default doctrine, federal habeas review is barred where a state

court declined to address a petitioner’s claims because of a failure to satisfy state procedural

requirements. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Where a petitioner’s

claims have been procedurally defaulted, the state court judgment rests on an independent and

adequate state ground precluding review by a federal court. See Coleman, 501 U.S. at 750-51;

Wainwrightv. Sykes, 433 U.S. 72, 81 (1977); Harris v. Reed, 489 U.S. 255,262 (1989). If a claim

has been procedurally defaulted, federal habeas review is available only if the petitioner can

establish (1) the existence of cause for his default and actual prejudice resulting therefrom, or (2)

that failure to consider the merits of the claim will result in a fundamental miscarriage ofjustice.

See Williams v. Bagley, 380 F.3d 932, 966 (6th Cir. 2004) (citing Coleman, 501 U.S. at 750).

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2685 Page 13 of 36

Respondent argues that Petitioner failed to present any of his current habeas claims

in state court and, therefore, has procedurally defaulted his habeas claims. While there may be

merit to Respondent’s argument, the Court is not obligated to address such, but can instead simply

decide Peterson’s petition on the merits. See, e.g., Lambrix v. Singletary, 520 U.S. 518, 525

(1997) (recognizing that “judicial economy” may justify addressing a habeas petition on the merits

rather than addressing complicated procedural default questions). Considering that several of

Petitioner’s claims concern his alleged inability to present his claims on appeal, the Court opts to

simply address Petitioner’s claims on the merits.

The Court finds that Respondent is not

prejudiced by this approach, as Petitioner’s claims are without merit.

II.

Appellate Claims (Habeas Claims I, III, and VI)

While claims I, III, and VI of James’ amended habeas petition are worded slightly

differently, all three claims assert the same underlying issue, namely that Petitioner was deprived

of the right to counsel on his appeal of right from his criminal conviction. Before analyzing

Petitioner’s claims, however, it is first necessary to discuss the relevant procedural background.

Background

Petitioner appealed his conviction and in August 1996, the State Appellate

Defender Office was appointed to represent Petitioner. (ECF No. 189-13 at PageID.1450, 1452).

In February 1997, Petitioner himself filed in the trial court motions for new trial, Gjnther hearing,1

1 A Ginther hearing concerns a defendant's claim of ineffective assistance of counsel. See People v. Ginther, 390

Mich. 436 (1973).

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2686 Page 14 of 36

and Walker hearing.2 (ECF No, 104, Exhibit A-l).3 The court, however, rejected Petitioner’s

pleadings, informing Petitioner, “you are represented” and “this court will only hear matters

brought by your lawyer during the pendency of [your] appeal.” (Id.).

On April 4, 1997, Petitioner moved in the trial court “to proceed pro per.” (ECF

No. 189-13 at PagelD. 1461 -63). In his motion, Petitioner detailed the philosophical and strategic

differences he and his appointed counsel were experiencing. (Id.). Petitioner asserted that, based

upon his assessment of certain legal authority, his appellate counsel “was either incompetent in

legal precedences (sic) of both the Court of Appeals and Supreme Court or else she was

deliberately endeavoring to mislead Defendant/Appellant.” (Id. at PagelD. 1462-63). Petitioner

further observed that “he lacks confidence and trust in any attorney’s motivation or sense of ethics

to conscientiously protect your Defendant/Appellant’s rights of due process as guaranteed by the

US Const. VI Amendment.” (Id. at PagelD. 1463). Accordingly, Petitioner moved the court to

permit his appointed counsel to withdraw so that he could represent himself on appeal. (Id. at

PagelD. 1461-63).

On April 18, 1997, Petitioner sent a letter to his appellate counsel requesting that

she withdraw her representation. (ECF No. 32, Exhibit B). Specifically, Petitioner informed his

attorney that, “because of my lack of trust and our irreconcilable differences of opinion, I think

this is the best for both of us.” (Id.). That same day, Petitioner authored a letter informing the

2 A Walker hearing concerns a defendant’s challenge to the admissibility of a confession. See People v. Walker,

374 Mich. 331 (1965).

3 The Court has, to the greatest extent possible, cited to electronically submitted versions of certain record items.

Nevertheless, many of the relevant items jn the record are contained in pleadings submitted before the advent of the

Court’s electronic filing system. In such instances, the Court must cite to the docket entry number and, if possible,

exhibit number instead of the now more familiar PagelD. citation.

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2687 Page 15 of 36

trial judge that he had requested his appointed appellate counsel to withdraw. (ECF No. 32,

Exhibit C). Petitioner’s appellate counsel subsequently moved to withdraw her representation of

Petitioner. (ECF No. 181-1 at PageID.539). Counsel’s motion to withdraw was subsequently

granted. (Id.).

Petitioner, expressly stating that he was representing himself, then moved in the

trial court for copies of all documents, including trial transcripts, relative to his criminal conviction.

(ECF No. 189-13 at PageID.1458). Petitioner’s motion was granted and on June 30, 1997, the

court sent to Petitioner a copy of the court file regarding his conviction, including the trial

transcripts. (ECF No. 32, Exhibit E; ECF No. 189-22 at PageID.2258).4 Shortly thereafter,

Petitioner (now representing himself) filed in the trial court a motion for new trial, a motion for

Burton hearing5, a motion for Ginther hearing, and a motion for bond pending appeal. (Dkt. #

104, Exhibit A-9; ECF No. 189-13 at PageID.1527).

In November 1998, Petitioner filed in the Michigan Court of Appeals a motion to

dismiss charges, a motion for a new trial, and a motion for bond pending appeal. (ECF No. 18913 at PageID.1498-1516). The Michigan Court of Appeals, in orders dated February 11, 1999,

and March 8, 1999, denied Petitioner’s motions and instead remanded the matter to the trial court

with instructions to “hear and decide [Petitioner’s] motion for new trial/Burton hearing based on

newly discovered evidence, motion for new trial/Ginther hearing based on ineffective assistance

4 The Court notes that Petitioner previously received a copy ofhis trial transcripts. (ECFNo. 181-1 atPageID.515;

ECF No. 189-13 at PageID.1456).

5 A Burton hearing concerns a defendant’s claim for relief based upon newly discovered evidence. People v.

Burton, 1A Mich. App. 215 (1974).

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2688 Page 16 of 36

of counsel and motion for bond pending appeal” filed in the trial court in June 1997. (ECF No.

189-13 at PageID.1527-28).

On March 12, 1999, the trial court conducted a hearing on Petitioner’s various

motions. At the outset, the court appointed attorney William Winters to assist Petitioner as

standby counsel. (ECF No. 189-9 at PagelD. 1286-89). Petitioner responded that he was “okay”

with this arrangement, but that “at this point” he wanted to proceed on his own without Mr.

Winters’ assistance. {Id. at PageID.1289). The judge, however, informed Petitioner that “if you

change your mind, you are free to do so.” {Id. at PagelD. 1289-90). The hearing was then

adjourned.

On April 23, 1999, the trial court reconvened and conducted a hearing on

Petitioner’s claim that his trial attorney had failed to render effective assistance. As part of this

hearing, the trial judge engaged in a lengthy discussion with Petitioner regarding his decision to

represent himself on appeal. {Id. at PagelD.1305-19). However, in light of Petitioner’s strategy

to pursue his claim of ineffective assistance of trial counsel without eliciting testimony from his

trial counsel, the trial judge, in an apparent abundance of caution, decided to refer Petitioner for a

competency examination to ensure that he was competent to waive his right to the assistance of

counsel. (ECF No. 189-9 at PagelD. 1301-35; ECF No. 189-13 at PageID.1533).

On June 4, 1999, the trial court reconvened to consider the issue of Petitioner’s

competency.

In finding Petitioner competent, the judge adopted the conclusions of the

psychologist who had examined Petitioner, which were as follows:

Mr. James is capable of understanding the nature and the object of

the proceedings, he is aware of his position in the pending

proceeding, and is capable of assisting and conducting, I suppose,

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2689 Page 17 of 36

the Defense in a rational and reasonable manner, and delay would

not be expected to alter anything going on with him.

(ECF No. 189-10 at PagelD. 1340-41).

■The trial court held hearings on June 25, 1999, and again on July 22, 1999, to

consider Petitioner’s various motions. (ECF No. 189-11 at PageID.1370-1419). On September

9, 1999, the trial court issued an opinion resolving the various motions it was instructed by the

Michigan Court of Appeals to consider on remand. .(ECF No. 189-13 at PageID.1530-37). In

denying Petitioner’s motions, the court concluded as follows:

The Court gave Mr. James over three opportunities on three separate

occasions between April and July, 1999 to hold both Ginther and

Burton hearings. However, Mr. James repeatedly declined to

proceed with either hearing. Rather, Mr. James elected, clearly and

unequivocally, to proceed on the trial record and not expand that

record with any hearings. Defendant stated he wished the matters

to be decided on the record in the Court of Appeals, and voluntarily

withdrew his motions for a new trial based upon Ginther and Burton

hearings.

The defendant was appointed with stand by counsel; was clearly

informed of the Court of Appeals remand order; was determined to

be competent to proceed as his own counsel; and, was fully informed

of his right to hold both hearings and to call witnesses. However,

Mr. James declined to proceed with either hearing and withdrew his

motions.

The defendant having withdrawn his motions for a new trial based

upon a Ginther and Burton hearings, the Court dismisses those

motions.

Defendant’s Motion for Bond pending appeal is denied.

(Id. at 1536-37).

On December 29, 1999, Petitioner filed in the Michigan Supreme Court a motion

for the appointment of appellate counsel, as well as various motions challenging the November

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2690 Page 18 of 36

22, 1999 decision by the Michigan Court of Appeals denying certain of his motions for failure to

properly serve copies of such on the prosecuting attorney. (ECF No. 48). These motions were

all subsequently denied. (ECF No. 189-20 at PageID.1986).

At approximately this same time, Petitioner also filed in the Michigan Court of

Appeals a motion for the appointment of appellate counsel. (Dkt. #104, Exhibit A-22). On

January 13, 2000, the Michigan Court of Appeals informed Petitioner that if he wished to obtain

court-appointed appellate counsel he must instead “file an appropriate motion with the trial court.”

(Id). Petitioner has neither presented nor identified evidence in the record that he complied with

this instruction. Petitioner’s appeal was later dismissed for his failure to file a brief as directed

by the Michigan Court of Appeals. (ECF No. 32, Exhibit H; ECF No. 189-13 at PageID.1449;

ECF No. 189-14 at PageID.1642).

Analysis

An indigent criminal defendant enjoys the right under our Constitution to the

appointment of counsel when pursuing an initial appeal of right. See Douglas v. California, 372

U.S. 353, 354-58 (1963). A criminal defendant can nevertheless choose to represent himself on

appeal so long as that choice is knowing, voluntary, and intelligent. See Iowa v. Tovar, 541 U.S.

77, 87-88 (2004) (“[wjhile the Constitution does not force a lawyer upon a defendant, it does

require that any waiver of the right to counsel be knowing, voluntary, and intelligent”).

Petitioner argues that he is entitled to relief because the state court failed to conduct

a hearing dedicated to the issue of waiver of appellate counsel and, furthermore, failed to make

specific findings on the record to support a determination that he properly waived his right to

appellate counsel. (ECF No. 181'at PageID.445-54, 466-69, 484-91). Specifically, Petitioner

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2691 Page 19 of 36

argues that for a waiver of counsel to be valid “there must be a record (i.e., a transcript record from

a pre-waiver hearing) showing the defendant, appellant or Petitioner was ‘warned about the

dangers of self-representation so that he or she knew’ what they were getting into with their ‘eyes

wide open.’” (ECF No. 181 at PageID.487).

The primary case on which Petiitoner relies is Faretta v. California, 422 U.S. 806

(1975). Anthony Faretta was charged with theft after which counsel was appointed to represent

him. Id.at 807. When Faretta later moved to represent himself, the trial judge questioned Faretta

about his request. Id. at 807-08. The judge granted Faretta’s request, but reserved the right to

“reverse this ruling if it later appeared that Faretta was unable adequately to represent himself.”

s« - "

Id. at 808. The trial judge later conducted a hearing at which he questioned Faretta “about both

the hearsay rule and the state law governing the challenge of potential jurors.” Ibid. Dissatisfied

with Faretta’s responses, the trial judge reversed his decision and denied Faretta’s request to

represent himself. Id. at 808-10. A jury convicted Faretta who, following his unsuccessful state

court appeals, moved the United States Supreme Court to hear the case. Id. at 811 -12.

In its decision, the Faretta Court expressly stated that the question before it was

limited to “whether a defendant in a state criminal trial has a constitutional right to proceed without

counsel when he voluntarily and intelligently elects to do so.” Id. at 807. The Court answered

this question in the affirmative following an extensive analysis. Id. at 812-34. After reaching

this conclusion, the Court further observed:

When an accused manages his own defense, he relinquishes, as a

purely factual matter, many of the traditional benefits associated

with the right to counsel. For this reason, in order to represent

himself, the accusedf must ‘knowingly and intelligently’ forgo those

relinquished benefits. Although a defendant need not himself have

the skill and experience of a lawyer in order competently and

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2692 Page 20 of 36

intelligently to choose self-representation, he should be made aware

of the dangers and disadvantages of self-representation, so that the

record will establish that ‘he knows what he is doing and his choice

is made with eyes open.’

Faretta clearly and unequivocally declared to the trial judge that he

wanted to represent himself and did not want counsel. The record

affirmatively shows that Faretta was literate, competent, and

understanding, and that he was voluntarily exercising his informed

free will. The trial judge had warned Faretta that he thought it was

a mistake not to accept the assistance of counsel, and that Faretta

would be required to follow all the ‘ground rules' of trial procedure.

We need make no assessment of how well or poorly Faretta had

mastered the intricacies of the hearsay rule and the California code

provisions that govern challenges of potential jurors on voir dire.

For his technical legal knowledge, as such, was not relevant to an

assessment of his knowing exercise of the right to defend himself.

In forcing Faretta, under these circumstances, to accept against his

will a state-appointed public defender, the California courts

deprived him of his constitutional right to conduct his own defense.

®Accordingly, the judgment before us is vacated, and the case is

remanded for further proceedings not inconsistent with this opinion.

Id. at 835-36 (citations and footnotes omitted).

Petitioner’s argument is premised on the Faretta Court’s observation that a criminal

defendant “should be made aware of the dangers and disadvantages of self-representation, so that

the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’”

As is recognized, however, this observation does not mandate that a finding of waiver be

predicated upon any particular process or finding. See, e.g., Vreeland v. Zupan, 906 F.3d 866,

877 (10th Cir. 2018) (“in Faretta, the Court held that the defendant’s express statements were

sufficient to waive the right to counsel and to invoke the right to proceed pro se. But the Court

didn’t address whether such statements were necessary to yield that result”); Knight v. Phillips,

2012 WL 5955058 at *14 (E.D.N.Y., Nov. 28,2012) (“[tjhat the Court went on to find that Faretta

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2693 Page 21 of 36

did in fact knowingly and voluntarily waive his rights, citing trial court warnings in support of this

finding, does not render such a finding necessary to the Court’s answer to the question presented”).

The Supreme Court has since confirmed that the language upon which Petitioner relies is mere

dicta. See Tovar, 541 U.S. at 88 (“[w]e have not, however, prescribed any formula or script to be

read to a defendant who states that he elects to proceed without counsel”).

Moreover, to the extent that Faretta is interpreted as mandating a certain procedure

prior to finding a valid waiver of the right to counsel, the Tovar Court expressly limited such to

the “waiver of trial counsel.” Id. at 88-89. It would certainly not be unreasonable to require a

more thorough and explicit inquiry in the context of a waiver of trial counsel. The right a criminal

defendant enjoys to self-representation at trial flows directly from the Sixth Amendment. See

Faretta, 422 U.S. at 818-20.

The Sixth Amendment, however, articulates rights that “are

available in preparation for trial and at the trial itself’ and “does riot include any right to appeal.”

Martinez v. Court ofAppeal ofCalifornia, Fourth Appellate District, 528 U.S. 152,159-60 (2000).

Moreover, the dynamic between the state and the criminal defendant changes once a defendant

moves from the trial stage to the appellate stage. Id. at 162. While a criminal trial is initiated by

the state against a defendant who enjoys the presumption of innocence, a criminal appeal is usually

initiated by a defendant “seeking not to fend off the efforts of the State’s prosecutor but rather to

overturn a finding of guilt made by ajudge or jury below.” Id. at 162-63 (citation omitted).

In sum, whether a defendant’s waiver of the right to counsel is knowing, voluntary,

and intelligent “will depend on a range of case-specific factors, including the defendant’s

education or sophistication, the complex or easily grasped nature of the charge, and the stage of

the proceeding.” Tovar, 541 U.S. at 88. A defendant can waive the right to counsel “through

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2694 Page 22 of 36

[his] conduct as well as though [his] words.” Ayers v. Hall, 900 F.3d 829, 836 (6th Cir. 2018).

Moreover, Faretta and its progeny do not preclude a court concluding that a criminal defendant

waived his right to counsel impliedly rather than expressly. See Vreeland, 906 F.3d at 877.

Petitioner bears the burden to establish that the waiver of his right to appellate counsel was not

knowing, voluntary, and intelligent. See Tovar, 541 U.S. at 92 (in the context of a collateral

attack, “it is the defendant’s burden to prove he did not competently and intelligently waive his

right to the assistance of counsel”). Petitioner has failed to meet his burden.6

First, with respect to Petitioner’s employment, training, and education, the Court

notes that Petitioner was employed as the “Head Quality Control Inspector” at Su-Dan, a

manufacturing company. (ECF No. 181 at PageID.504-05). As a Su-Dan employee, Petitioner

successfully completed a blueprint reading course and safety training courses concerning

“hazardous energy” and “hazard communication.” (ECF No. 181-1 at PageID.693). Petitioner

was also a full-time nursing student at the University of Detroit Mercy earning a cumulative grade

point average of 3.452. (ECF No. 181 at PageID.504-05; ECF No. 181-1 at PageID.687-89).

After being appointed counsel to represent him on appeal, Petitioner nonetheless

filed in the trial court several motions for relief. After Petitioner was informed that his motions

could not be considered because he was fepresented by counsel, Petitioner instructed his appointed

counsel to withdraw and also moved the cqurfHo represent himself going forward. In so doing,

Petitioner clearly articulated his dispute wiffi-’counsel and his rationale for desiring to represent

himself. Petitioner also identified the legal claims he wished to pursue, .none of which were

6 Moreover, even if Respondent bore the burden on this issue, the Court would reach the same result for the reasons

articulated below.

• *.r

Case 4:01-cv-Q0098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2695 Page 23 of 36

unreasonable or fanciful. Petitioner then proceeded to vigorously represent himself, filing several

motions for relief in the trial and appellate courts.

As previously noted, counsel’s motion to withdraw and Petitioner’s motion to

represent himself were granted in early 1997. While the trial court did not conduct a hearing prior

to granting these motions, the record supports a finding that Petitioner understood that he had been,

provided appointed counsel, but was declining such despite the risks inherent in such a strategy.

That these motions were granted without first conducting a formal hearing or without eliciting

from Petitioner any specific statement is not relevant. See, e.g., Ayers, 900 F.3d at 835-36 (a criminal defendant “may waive [his] right to counsel through [his] conduct as well as through [his]

words”). In sum, Petitioner cannot satisfy his burden to demonstrate that his request to represent

himself in 1997 was not made knowingly, intelligently, and voluntarily.

This conclusion is further supported by Petitioner’s responses when later

questioned by the trial judge regarding his desire to represent himself. At a March 12, 1999

hearing, Petitioner reiterated that he wanted to represent himself.^ (ECF No. 189-9 at

PageID.1282-89). The court nevertheless appointed stand-by counsel to assist Petitioner, an

arrangement with which Petitioner was satisfied. (Id. at PagelD. 1286-90).

When the hearing on Petitioner’s various motions reconvened on April 23, 1999,

Petitioner reiterated that he wanted to represent himself and, furthermore, that he understood that

the court would appoint an attorney to represent *him, at no cost, if he so desired. (Id. at

PagelD. 1299, 1305-07). Plaintiff indicated ‘that he was satisfied with stand-by counsel and

understood that he could enlist his assistance at any time and to whatever degree he desired. (Id.

€

at PagelD. 1307-19). Plaintiff also expressed his understanding of the risks associated with

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2696 Page 24 of 36

representing himself. {Id. at PagelD.1312-19). Moreover, a subsequent examination found

Petitioner competent to represent himself. (ECF No. 189-10 at PageID.1340-41).

Petitioner was, therefore, permitted to represent himself and the court proceeded,

over the course of three hearings, to address Petitioner’s various motions. (ECF No. 189-10 at

PagelD.1337-68; ECF No. 189-11 at PagelD.1370-1445). The Court discerns nothing during the

course of these proceedings which calls into doubt the trial judge’s determination that Petitioner’s

decision to waive his right to appointed counsel was anything other than knowing, intelligent, and

voluntary. Likewise, Petitioner has failed to identify anything in the record which suggests that

his decision to represent himself was not voluntary, knowing, and intelligent.

Instead, Petitioner ’ s claim is simply that the trial judge failed to conduct a particular

<•

type of hearing or make certain findings prior to permitting Petitioner to represent himself. As

already noted, however, the trial judge was not obligated to conduct any particular type of hearing

or make any specific findings before granting Petitioner’s request to represent himself. Instead,

the question is simply whether Petitioner’s decision to waive his to appellate counsel was knowing,

intelligent, and voluntary. For the reasons discussed herein, Petitioner has failed to satisfy his

burden. Accordingly, habeas claims I, III, and VI are rejected.7

III.

Illegal Conviction (Habeas Claim IV)

Petitioner argues that he is entitled, to relief because: (1) the state court lacked

jurisdiction to conduct his trial, and (2) the state faile^L-to initiate criminal charges against him in

7 To the extent Petitioner argues that he was denied his right to appeal by the decision by the Michigan Court of

Appeals to dismiss his appeal for his failure to file a brief, such claim is also rejected. The court dismissed

Petitioner’s appeal for his failure to comply with Michigan rules and/or laws which cannot serve as a basis for

habeas relief in this Court. See 28 U.S.C. § 2254(a). Moreover, Petitioner has identified no authority that warrants

habeas relief where a defendant fails to prosecute his appeal in state court.

\r'.

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2697 Page 25 of 36

■

►

accordance with Michigan law. (ECF No. 181 at PageID.469-79). Petitioner’s claim that the

state court lacked jurisdiction to conduct his criminal trial is a matter of state law which is not

cognizable in a federal habeas corpus proceeding. See Strunk v. Martin, 27 Fed. Appx. 473, 475

(6th Cir., Nov. 6, 2001); Milner v Hoffner, 2017 WL 24793 at *10 (E.D. Mich., Jan. 3, 2017).

Moreover, alleged deficiencies in the state’s initial criminal proceedings are not cognizable in a

federal habeas proceeding, as such alleged deficiencies do not undermine the validity of any

subsequent conviction.

See, e.g., Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (the Court

recognized “the established rule that illegal arrest or detention does not void a subsequent

conviction”). Accordingly, this claim is rejected.

IV.

Sufficiency of the Evidence (Habeas Claim II)

Petitioner argues that he is entitled to relief because his conviction for second

degree murder is not supported by constitutionally sufficient evidence.

(ECF No. 181 at

PageID.454-66). Claims challenging the sufficiency of the evidence are governed by the standard

articulated in Jackson v. Virginia, 443 U.S. 307 (1979), pursuant to which it must be determined

whether viewing the evidence in the light most favorable to the prosecution and according the

benefit of all reasonable inferences to the prosecution, any rational trier of fact could have found

Petitioner guilty beyond a reasonable doubt. See O ’Hara v. Brigano, 499 F.3d 492, 499 (6th Cir.

2007) (citing Jackson, 443 U.S. at 319-26).

When determining whether there exists sufficient evidence to support a conviction

the Court may not weigh the evidence, assess the credibility of the witnesses, or substitute its

judgment for that of the jury. See United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006).

Furthermore, where the record supports conflicting inferences the Court “must presume - even if

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2698 Page 26 of 36

it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in

favor of the prosecution, and must defer to that resolution.” O’Hara, 499 F.3d at 499 (quoting

Jackson, 443 U.S. at 326). While Petitioner complains that the case against him was premised

largely on circumstantial evidence, it must be remembered that “circumstantial evidence is entitled

to the same weight as direct evidence” and “circumstantial evidence alone is sufficient to sustain

a conviction.” United States v. Mack, 808 F.3d 1074, 1080 (6th Cir. 2015).

Pursuant to Michigan law in effect as of January 1, 1996, an individual was guilty

of second-degree murder if the following elements were satisfied: (1) a death; (2) caused by the

defendant; (3) the killing was done with malice; and (4) without justification or excuse. See

People v. Porter, 425 N.W.2d 514,515 (Mich. Ct. App. 1988). Malice is defined as “the intention

to kill, the intention to do great bodily harm, or the intention to create a high risk of death or great

bodily harm with knowledge that such is the probable result.” Ibid. Malice “can be inferred

from the facts and circumstances of the killing.” Ibid. Malice may also be inferred from the.

defendant’s “use of a dangerous weapon.” People v. Jordan, 1997 WL 33350698 at *1 (Mich.

Ct. App., Apr. 29, 1997) (citation omitted).

Viewing the evidence pursuant to the relevant standard compels the conclusion that

the evidence supporting Petitioner’s guilt was constitutionally sufficient. The Assistant Medical

Examiner testified that A1 Kendrick died as a result of a single gunshot wound to the head.

Deborah Sanders and Corine Cooks both testified that they witnessed Petitioner shoot Kendrick in

the head. Petitioner conceded shooting his weapon in Kendrick’s vicinity. This evidence

satisfies the first three elements of the offense. As to the fourth element, lack of justification or

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19^ PagelD?269^ Page 27 of 36

7 *

excuse, Deborah Sanders testified that Kendrick did not threaten Petitioner before being killed.

Accordingly, this claim is rejected.

Prosecutorial Misconduct (Habeas Claim VII)

Petitioner alleges that his right to a fair trial was violated by several instances of

misconduct by the prosecuting attorney, each of which is explored below. (ECF No. 181 at

PagelD .492-509).

When a petitioner makes a claim of prosecutorial misconduct, “the touchstone of

due process analysis...is the fairness of the trial,not the culpability of the prosecutor.” Cockream

v. Jones, 382 Fed. Appx. 479, 484 (6th Cir., June 29, 2010) (quoting Smith v. Phillips, 455 U.S.

209, 219 (1982)). The issue is whether the prosecutor’s conduct “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” Gillard v. Mitchell, 445

F.“3d 883, 897 (6th Cir. 2006) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)); see also,

Givens v. Yukins, 2000 WL 1828484 at *6 (6th Cir., Dec. 5, 2000) (“[t]he aim of due process is

not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the

accused”) (quoting Phillips, 455 U.S. at 219). Thus, even if the challenged comments were

improper, habeas relief is available only where the comments were “so Vagrant as to render the

entire trial fundamentally unfair.” Gillard, 445 F.3d at 897. It must also be remembered that

this Court “does not possess supervisory powers over state court trials” as “it is the responsibility

of the state courts to police their prosecutors.” Gordon v. Burt, 2016 WL 4435355 at *11 (W.D.

Mich., Aug. 23, 2016) (quoting Byrd v. Collins, 209 F.3d 486, 529 (6th Cir. 2000).

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2700 Page 28 of 36

Lack of Jurisdiction

Petitioner first argues that he is entitled to relief because jurisdiction to prosecute

him was lacking where the prosecuting attorney failed to file a criminal information in accordance

with Michigan law. (ECF No. 181 at PagelD.493-94). As noted above, claims that the state

court lacked jurisdiction to conduct Petitioner’s criminal trial, or that there existed deficiencies in

the state’s initial criminal proceedings, are not cognizable in a federal habeas corpus proceeding.

Moreover, Petitioner has failed to demonstrate that the fairness of his trial was impacted by any

events which preceded such. Accordingly, this claim is rejected.

Perjured Testimony

Petitioner next argues that he is entitled to relief on the ground that the prosecuting

attorney knowingly elicited perjurious testimony from several witnesses. To prevail on these

claims, Petitioner must demonstrate: (1) the testimony was false; (2) the prosecutor knew it was

false; and (3) the testimony was material. See Johnson v. Curtin, 2017 WL 7790115 at *4 (6th

Cir., Oct. 23, 2017) (citation omitted). Moreover, the testimony “must be indisputably false,

rather than merely misleading.” Ibid, (citations omitted).

Corine Cooks

Petitioner alleges that at the preliminary examination,8 Cooks testified that A1

Kendrick was carrying a knife when he entered Petitioner’s Commonwealth Street house on the

night in question. (ECF No. 181 at PageID.494-95). Cooks allegedly further testified that she

did not witness Kendrick set down the knife and could not discern if Kendrick was still holding

8 The transcripts of Petitioner’s preliminary examination were not submitted by Respondent. The Court will,

therefore, in the absence of evidence to the contrary, accept Petitioner’s description of the relevant preliminary

examination testimony.

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2701 Page 29 of 36

the knife when Petitioner entered the residence, {Id.). At trial, Cooks testified that when

Kendrick began fighting with Joe, Kendrick was carrying a knife.

(ECF No. 189-5 at

PageID.1041-42). Cooks then testified that after Petitioner entered the residence, she did not

observe Kendrick carrying a knife. {Id. at PageID.1042). Cooks then agreed that it “would be

fair to say at one point [Kendrick] had the knife and then later he didn’t have the knife anymore.”

{Id.).

Petitioner alleges that Cooks’ trial testimony is inconsistent with her previous

preliminary examination testimony and that such establishes that the prosecutor violated his right

to a fair trial by knowingly eliciting perjurious testimony. First, Petitioner has failed to establish

that Cooks’ trial testimony was false. Instead, Petitioner has established, at most, a slight

inconsistency in her testimony. Moreover, even if the Court assumes that Cooks’ trial testimony

was false, Petitioner has presented no evidence establishing that the prosecutor knew the testimony

was false. Accordingly, this claim is rejected.

Deborah Sanders

Petitioner has submitted a copy of a witness statement allegedly signed by Sanders

following an interview with a police investigator on January 21, 1996. (ECF No. 181-1 at

PageID.649). According to this statement, Sanders told the investigator that when Petitioner

entered the residence and confronted A1 Kendrick, Petitioner asked Kendrick, “what’s that for?”

{Id.) According to Petitioner, his question was in reference to a knife Kendrick was allegedly

■

carrying at that moment. (ECF No. 181 at PageID.495-96). At trial, however, Sanders testified

that when Petitioner confronted A1 Kendrick with a gun, Kendrick asked, “what’s that for?”,

referring to the gun. (ECF No. 189-4 at PageID.971).

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2702 Page 30 of 36

Petitioner argues that Sanders’ trial testimony is inconsistent with her previous

witness statement and that such establishes that the prosecutor knowingly elicited perjurious

testimony at trial in violation of his right to a fair trial. Petitioner has failed to demonstrate that

the testimony in question is false as opposed to merely inconsistent with her previous witness

statement. Again, even if the Court assumes that Sanders’ trial testimony was false, Petitioner

has presented no evidence that the prosecutor knew that the testimony was false. Accordingly,

this claim is rejected.

Lanning Davidson

As noted above, Davidson performed an autopsy on A1 Kendrick’s body. At trial,

Davidson described the bullet which he extracted from Kendrick’s brain as “a small caliber

nonjacket bullet.” (ECF No. 189-4 at PageID.949). According to Petitioner, at the preliminary

examination, Davidson described this bullet as a “small caliber deformed non-jacketed bullet.”

(ECF No. 181 at PageID.496-99). Petitioner argues that the characterization of this bullet as

“deformed” “is significant to the defense of accidental death due to a ricochet bullet.” This may

be the case, but all Petitioner has established is that Davidson’s trial testimony was, at most,

incomplete or inconsistent rather than false.9 Moreover, even if the Court assumes that the

testimony is question was false, Petitioner has presented no evidence that the prosecutor knew the

testimony was false. This claim is, therefore, rejected.

9 The Court notes that Petitioner explored this issue on cross-examination eliciting from Davidson testimony that

the bullet in question was discovered in “fragments” (i.e., it was deformed).

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2703 Page 31 of 36

Suppression of Evidence

In the context of his various claims of prosecutorial misconduct, Petitioner

advances the argument that the prosecutor improperly withheld exculpatory and impeachment

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). (ECF No. 181 at PageID.499500). Specifically, Petitioner asserts that the prosecution improperly withheld from the defense

the following items: (1) a witness statement Deborah Sanders made to the Detroit‘Police on

January 21, 1996; and (2) Lanning Davidson’s report and notes concerning his autopsy of A1

Kendrick. (ECF No. 181 at PageID.499-500, 648-51, 656-62).

In Brady, the Supreme Court held that “the suppression by the prosecution of

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

either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

Wilson v. Mitchell, 498 F.3d 491, 512 (6th Cir. 2007) (quoting Brady, 373 U.S. at 87). The

material which must be disclosed under Brady “encompasses impeachment evidence as well as

exculpatory evidence.” Wilson, 498 F.3d at 512 (citing United States v. Bagley, 473 U.S. 667,

676(1985)).

To establish a Brady violation, Petitioner must establish: (1) the prosecution

suppressed or withheld evidence, (2) such evidence was favorable to the defense, and (3) the

suppressed evidence was material. See United States v. Dado, 759 F.3d 550, 559-60 (6th Cir.

2014). Petitioner’s claim fails, however, because Petitioner has no evidence that the information

in question was, in fact, withheld from the defense. See, e.g., Gillard v. Mitchell, 445 F.3d 883,

894 (6th Cir. 2006) (habeas petitioner “has the burden of establishing that the prosecutor

suppressed evidence”). This claim is, therefore, rejected.

.7.'

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2704 Page 32 of 36

•- 'H

Improper Argument

4s previously noted, Petitioner asserts that he did not fire his weapon directly at A1

Kendrick, but instead fired his weapon into the ceiling after which the bullet ricocheted and struck

Kendrick. Petitioner argues that he is entitled to relief because during closing argument the

prosecutor attacked his ricochet theory. (ECF No. 181 at PageID.500-03). * Specifically, the

prosecutor argued that Petitioner’s ricochet theory was “garbage” and “makes no sense” because

it was contrary to the evidence. (ECF No. 189-6 at ?ageID. 1163-64). Petitioner also complains

about the prosecutor’s closing argument regarding Corine Cooks’ testimony that she “felt

something hit [her] in [her] head” immediately after Petitioner fired his weapon. (ECF No. 1895 at 1052). Regarding this testimony, the prosecutor stated in closing argument:

That’s the gunpowder, that’s my explanation^ you, the gunpowder

that [Cooks] felt when she was standing right next to the defendant

when lie shot the weapon. She said air or powder on her face and

she ran upstairs. That’s where that comes from, not from this

ricochet theory because’it wasn’t plast[er], ^She would have said

plast[er],

(ECF No. 189-6 at PagelD.l 176-77).

It is not inappropriate for a prosecutor to “highlight the inconsistencies or

inadequacies of the defense, and forcefully assert reasonable inferences from the evidence.”

Bates v. Bell, 402 F.3d 635, 646 (6th Cir. 2005). Likewise, the prosecutor is permitted to “point

out the lack of evidence supporting [the defendant’s] theories” of the case. United States v.

Forrest, 402 F.3d 678,686 (6th Cir. 2005). Nevertheless, a prosecutor may not “make unfounded

and inflammatory attacks on the opposing advocate,” United States v. Young, 470 U.S. 1,9 (1985),

or “argue that counsel is attempting to mislead the jury.” West v. Bell, 550 F.3d 542, 565 (6th

Cir. 2008).

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2705 Page 33 of 36

•4s

The Court discerns nothing improper about the prosecutor’s argument that

Petitioner’s ricochet theory was weak and inconsistent with the evidence. First, aside from

Petitioner’s testimony that the bullet “bounced off of the wall,” Petitioner has identified no

evidence in support of his ricochet theory. Petitioner asserts that there exists evidence that “traces

of foreign material” were discovered on the bullet fragments removed from A1 Kendrick’s brain,

thus supporting his ricochet theory. (ECF No. 181 at PageID.503). However, the evidence to

which Petitioner cites contains nothing which establishes or even suggests that the bullet fragments

removed from Kendrick’s brain contained any “traces of foreign material.” (ECF No. 181-1 at

PagelD.669-76, 683-85).

Second, as the prosecutor reasonably argued, Petitioner’s ricochet

theory was inconsistent with Lanning Davidson’s conclusion that the bullet which killed Kendrick

was fired from a weapon which had been “held straight in front of Mr. Kendrick[‘s] forehead.”

In*sum, the prosecutor’s argument that Petitioner’s ricochet theory was contrary to the evidence,

as well as common sense, did not deprive Petitioner of a fair trial.

As for the prosecutor’s comments concerning Corine Cooks’ testimony referenced

immediately above, the Court reaches the same conclusion. Cooks testified that she was standing

within arm’s length of Petitioner when he fired his weapon. (ECF No. 189-5 at PagelD.1051-52).

Cooks testified that immediately after Petitioner fired his weapon, she felt something “like air” or

“like a powder” hit her in the head. (Id. at PagelD. 1052). Lanning Davidson testified that

gunpowder residue would land on skin or objects located within two feet of the weapon when

discharged. (ECF No. 189-4 at PageID.947-48). The prosecutor’s argument that the material

Cooks felt on her face immediately after Petitioner fired his weapon was gunpowder, rather that

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2706 . Page 34 of 36

ricochet residue, was entirely consistent with the evidence and, therefore, did not deprive Petitioner

of a fair trial. Accordingly, this claim is rejected.

Character and Other Bad Acts Evidence

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

prosecuting attorney argued that Petitioner only pretended to be a Reverend and was instead a

pimp and drug dealer. (ECF No. 181 at PageID.503-09). Corine Cooks testified that Petitioner

referred to himself as “Reverend,” but was not, in fact, a Reverend.

(ECF No. 189-5 at

PagelD. 1034). Cooks further testified that Petitioner supplied her with drugs. {Id. at 1034-35).

Marlene Irby testified that other people used drugs at Petitioner’s Commonwealth Street house.

(ECF No. 189-3 at PageID.928-29). Deborah Sanders testified that she lived at Petitioner’s

Commonwealth Street house and paid her rent by engaging in acts of prostitution.

{Id. at

PageID.959-60). Given this evidence, it was reasonable for the prosecutor to point out to the jury

that Petitioner was “not really a Reverehd” and, moreover, that Petitioner was aware of the drug

use and prostitution occurring in his house. (ECF No. 189-6 at PagelD. 1166-67). This claim is,

accordingly, rejected.

VI.

Trial Transcripts (Habeas Claim V)

Petitioner argues that his right to appeal his conviction was denied by the State’s

failure to provide him with “unaltered trial transcripts” as well as transcripts of the various post

conviction proceedings before the trial court discussed above. (ECF No. 181 at PageID.479-84).

Accurate Trial Transcripts

As rioted above, contemporaneous with the granting of Petitioner’s request to

represent himself on appeal, the ‘trial court provided Petitioner with copies of the court file

. \

f, r

Case 4:01-cv-00098-PLM-ESC ECF No.*212 filed 07/09/19 PagelD.2707 Page 35 of 36

including trial transcripts. Petitioner argues that these transcripts, however, were inaccurate.*"

The Court “must presume that the trial transcript accurately reflects the proceedings in the trial

court.” Thomas v. McKee, 2016 WL'213021 at *23 (E.D. Mich., Jan. 19, 2016); Norris v.

Schotten, 146 F.3d 314, 333 (6th Cir. 1998) (in a habeas proceeding speculation is insufficient

when challenging the accuracy of trial transcripts); Harris v. McBride, 2014 WL 2738574 at *4

(N.D.W.V., June 17, 2014) (recognizing, in the context of a habeas action, that “[t]he fact that the

petitioner disagrees with what is contained in a transcript is insufficient to overcome the

presumption of the transcript’s accuracy”).

The trial transcripts in this matter are -all certified accurate by the court reporter.

(ECF No. 189-4 at PageID.983; ECF No. 189-5 at AgelD.1097; ECF No. 189-6 at PageID.1222;

•O'*-'

' ,

ECF No. 189-7 at PageID.1240). Aside from identifying a single instance in the transcript where

the name “Aaron” was misspelled “Erin,” Petitioner offers nothing but unsubstantiated speculation

in support of his claim. Having failed to overcome the presumption of correctness applicable to

the trial transcripts, Petitioner’s claim is rejected.

Failure to Provide Transcripts of Post-Conviction Proceedings

•v

Petitioner also argues that he is entitled to relief because his right to appeal was

denied by the State’s failure to provide him copies of the transcripts of the various post-conviction

hearings discussed above. To prevail on a claim of “denial of a fair appeal,” Petitioner “must

show prejudice resulting from the missing transcripts.” Winkler.v. Parris, - - - F.3d -

2019

WL 2509298 at *4 (6th Cir., May 8, 2019). Other than repeating the bare assertion that he

suffered prejudice because he was not provided copies of the transcripts in question, Petitioner has

failed to establish the requisite prejudice. Accordingly, this claim is rejected.

V •

Case 4:01-cv-00098-PLM-ESC ECF No. 212 filed 07/09/19 PagelD.2708 Page 36 of 36

CONCLUSION

For the reasons articulated herein, the undersigned concludes that Petitioner is not

being confined in violation of the laws, Constitution, or treaties of the United States.

Accordingly, :the undersigned recommends that James’ petition for writ of habeas corpus be

denied. The undersigned further recommends that a certificate of appealability be denied. See

Slack v. McDaniel, 529 U.S. 473 (2000); Miller-El, 537 U.S. at 336.

OBJECTIONS to this Report and Recommendation must be filed with the Clerk of

Court within 14 days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to .

file objections within the specified time waives the right to appeal the District Court’s order.

Thomas v. Am, 474 U.S. 140 (1985); United States v. Walters,, 638 F.2d 947 (6th Cir. 1981).

Respectfully submitted,

Is/ Ellen S. Carmodv______1

ELLEN S. CARMODY

United States Magistrate Judge

Date: July 9, 2019

■

, t.

Additional material

from this filing is

available in the

Clerk's Office.

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