Petition for Writ of Certiorari — Shane Swindall Chambers, Petitioner v. Fredeane Artis, Acting Warden

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FILED

No. 22-1247

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SHANE SWINDALL CHAMBERS,

Petitioner-Appellant,

v.

FREDEANE ARTIS, Acting Warden,

Respondent-Appellee.

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Nov 3, 2022

DEBORAH S. HUNT, Clerk

ORDER

Before: BATCHELDER, Circuit Judge.

Shane Swindall Chambers, a Michigan prisoner proceeding pro se, appeals a district court

judgment denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Chambers

requests a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). He also

requests leave to proceed in forma pauperis.

Barbara Andre, a 77-year-old woman, was beaten, sexually assaulted, and robbed after a

man broke into her home while she was sleeping. Although Andre could not identify the

perpetrator, investigation of the crimes led law enforcement officers to Chambers, and he was

charged with the crimes committed against Andre. A jury found Chambers guilty of two counts

of first-degree criminal sexual conduct, one during a felony and one causing personal injury, firstdegree home invasion; and assault with intent to do great bodily harm less than murder. At

sentencing, the trial court vacated the criminal-sexual-conduct-during-a-felony conviction.

Chambers was sentenced to serve life in prison for the remaining criminal-sexual-conduct

conviction, to run consecutively to concurrent sentences of 25 to 50 years in prison for the homeinvasion conviction and 10 to 50 years in prison for the assault conviction. The Michigan Court

of Appeals affirmed Chambers’s convictions.

People v. Chambers, No. 323024, 2015

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No. 22-1247

-2WL 8538928 (Mich. Ct. App. Dec. 10, 2015) (per curiam). The Michigan Supreme Court denied

leave to appeal.

Chambers filed a post-conviction motion for relief from judgment. The trial court denied

Chambers’s motion, and the Michigan appellate courts denied leave to appeal.

In this habeas corpus petition, Chambers claimed that (1) the trial court improperly

admitted propensity evidence at trial, (2) insufficient evidence was presented to support his

criminal-sexual-conduct conviction, (3) insufficient evidence was presented to support his homeinvasion and assault convictions, (4) he was denied a fair trial and the right of confrontation when

the preliminary-examination testimony of three witnesses was introduced at trial, and trial counsel

was ineffective for failing to object, (5) the trial court lacked jurisdiction over his prosecution due

to an improper bindover, and (6) the prosecutor maliciously prosecuted him and committed

misconduct during his trial. The district court denied Chambers’s habeas corpus petition and

denied a certificate of appealability.

A certificate of appealability may issue only if a petitioner makes “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard

by demonstrating that jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues presented are adequate to deserve

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

of appealability analysis is not the same as “a merits analysis.” Buck v. Davis, 137 S. Ct. 759, 773

(2017). Instead, the certificate of appealability analysis is limited “to a threshold inquiry into the

underlying merit of [the] claims,” and whether “the District Court’s decision was debatable.” Id.

at 774 (quoting Miller-El, 537 U.S. at 327, 348).

In his first claim, Chambers challenged the admission of propensity evidence at his trial.

Specifically, he challenged the testimony of Joan Schroeder and Cathie Nelson. The Michigan

Court of Appeals determined that this testimony was properly admitted under state evidentiary

rules to show “a common scheme, plan, or system.” Chambers, 2015 WL 8538928, at *2-4. It

also noted that the risk of unfair prejudice did not outweigh the probative value of the evidence,

pointing out that the trial court instructed the jury that a guilty verdict could not be based on

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propensity evidence, and that even without the propensity evidence, substantial evidence supported

Chambers’s guilt. Id. at *4.

The state appellate court’s interpretation of its own law and evidentiary rules, “including

one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas

corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). In addition, Chambers failed

to show that any error on the part of the state trial court in applying Michigan evidentiary rules

was “sufficiently egregious to amount to a denial of’ due process. See Pulley v. Harris, 465 U.S.

37, 41 (1984). “There is no clearly established Supreme Court precedent which holds that a state

violates due process by permitting propensity evidence in the form of other bad acts evidence”;

therefore, reasonable jurists could not debate the district court’s conclusion that the admission of

such evidence is not contrary to or an unreasonable application of clearly established federal law.

Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003); see 28 U.S.C. § 2254(d)(1).

In his second claim, Chambers challenged the sufficiency of the evidence supporting his

criminal-sexual-conduct conviction. He admitted that the evidence was sufficient to show personal

injury and force but argued that it was insufficient to show sexual penetration. In his third claim,

Chambers challenged the sufficiency of the evidence supporting his home-invasion and assault

convictions, arguing that the evidence was insufficient to identify him as the perpetrator.

The evidence is sufficient to support a conviction if, “after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). On

habeas review, application of this standard involves two levels of deference when the state courts

have rejected an insufficiency claim on the merits. Brown v. Konteh, 567 F.3d 191, 204-05 (6th

Cir. 2009). First, the federal court analyzes the claim under the Jackson standard, whereby it may

not “reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for

that of the jury.” Id. at 205. Second, the federal court defers “to the state appellate court’s

sufficiency determination as long as it is not unreasonable.” Id.; see Parker v. Matthews, 567 U.S.

37, 43 (2012) (per curiam). “Circumstantial evidence alone is sufficient to sustain a conviction

and such evidence need not remove every reasonable hypothesis except that of guilt.” United

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-4States v. Lowe, 795 F.3d 519, 522-23 (6th Cir. 2015) (quoting United States v. Algee, 599 F.3d

506, 512 (6th Cir. 2010)).

The Michigan Court of Appeals set forth the proper standard of review for an insufficientevidence claim and concluded that sufficient evidence was presented to support Chambers’s

convictions.

Chambers, 2015 WL 8538928, at *4-5.

Regarding penetration, it found that,

although Andre testified that she lost consciousness when she was beaten, she also testified that

she was wearing underwear when she went to sleep but, when she regained consciousness, her

underwear was missing, her pelvic area was severely bruised, and her vaginal area was very sore

and raw. Id. at *5. It also noted that Kristin Reinink, a nurse who examined Andre after the

assault, testified that Andre’s vaginal area was swollen, scratched, and painful to the touch, and

that her injuries “were consistent with penetration.” Id. Regarding identity, the state appellate

court found that Chambers possessed Andre’s credit card and a purse resembling Andre’s shortly

after Andre was victimized, that Chambers described kicking in a door and told Shannon Colvin

that he stole the purse resembling Andre’s, that Andre’s door was damaged and her purse was

stolen, that Chambers had a tan car, and that Andre testified that a man driving a light colored car

offered to help her carry items inside her home hours before she was assaulted. Id.

The district court concluded that the state appellate court’s rejection of Chambers’s

sufficiency-of-the-evidence claims was neither contrary to nor an unreasonable application of

federal law. Reasonable jurists would not debate that conclusion.

Andre’s and Reinink’s

testimony was sufficient to permit a rational jury to find that sexual penetration occurred so as to

support Chambers’s criminal-sexual-conduct conviction.

See Lowe, 795 F.3d 519, 522-23.

Testimony that Chambers was found in possession of Andre’s credit card and that Chambers

described kicking in a door and stealing a purse resembling Andre’s, among other evidence, was

sufficient to permit a rational jury to find that Chambers committed the home-invasion and assault

crimes against Andre. Chambers essentially asks that this court reweigh the evidence in his favor,

which is improper on habeas corpus review. See Brown, 567 F.3d at 205. The evidence presented

by the State supports Chambers’s convictions, and Chambers’s contrary interpretation of the

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-5evidence does not mean that a rational factfinder could not have found him guilty of the crimes

beyond a reasonable doubt.

Chambers’s fourth claim is that he was denied a fair trial and the right of confrontation

when the preliminary-examination testimony of three witnesses was introduced at trial. He argues

that the State should not have been permitted to introduce the preliminary-examination testimony

of Stacy Gatlin, Markeeta Minor, and Ciesha Minor, who were not present at the trial, because the

State did not diligently attempt to locate these witnesses. He also claims that trial counsel was

ineffective for failing to object to the presentation of the preliminary-examination testimony at

trial.

The Confrontation Clause prohibits the prosecution from substituting former testimony for

live testimony unless the prosecution demonstrates that the witness is “unavailable to testify” and

that “the defendant... had a prior opportunity for cross-examination.” Crawford v. Washington,

541 U.S. 36, 53-54 (2004). A witness is unavailable for purposes of the Confrontation Clause if

“the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber

v. Page, 390 U.S. 719, 724-25 (1968).

The Michigan Coin! of Appeals concluded that Chambers “waived any claim of error with

respect to the admission of [the preliminary-examination] testimony at trial when his counsel

agreed that the prosecutor had made sufficient efforts to secure the witnesses in question.”

Chambers, 2015 WL 8538928, at *6. It also concluded that counsel was not ineffective for failing

to object to the presentation of the preliminary-examination testimony at trial because admission

of the testimony did not violate Chambers’s right of confrontation. Id. at *6-8. It found that the

State showed that diligent efforts were made to locate all three witnesses for trial, that the witnesses

were unavailable because they could not be located, and that because Chambers had an opportunity

and similar purpose to cross-examine all three witnesses during the preliminary examination as he

would at trial, his confrontation rights were not violated when the trial court admitted their

preliminary-examination testimony at trial. Id. at *7.

The district court concluded that the state court’s rejection of Chambers’s confrontation

claim was neither contrary to nor an unreasonable application of federal law. Reasonable jurists

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-6would not debate that conclusion. The state appellate court’s interpretation of its own law when

concluding that Gatlin and the Minors were unavailable and that the admission of their

preliminary-examination testimony was proper is binding on a federal habeas corpus court. See

Bradshaw, 546 U.S. at 76. Additionally, Chambers failed to show that his confrontation rights

were violated under federal law. Chambers failed to refute the state appellate court’s conclusion

that these witnesses were unavailable to testify at trial and that he had an opportunity and similar

motive to cross-examine them during the preliminary examination. See 28 U.S.C. § 2254(e)(1);

Crawford, 541 U.S. at 53-54. The State explained that it attempted to locate Gatlin and the Minors

for trial by contacting their parents, seeking assistance from road patrol officers to find them, and

issuing material witness warrants. When those reasonable efforts failed to locate the witnesses,

the witnesses were unavailable for trial. See Barber, 390 U.S. at 724-25. Reasonable jurists also

would agree that the state court did not unreasonably apply clearly established Supreme Court

precedent when it concluded that Chambers had an opportunity and a similar motive to crossexamine the witnesses during the preliminary examination. See Al-Timimi v. Jackson, 379 F.

App’x 435, 437-40 (6th Cir. 2010).

Chambers also claimed that trial counsel was ineffective for failing to object to the

presentation of the preliminary-examination testimony at trial.

The district court rejected Chambers’s ineffective-assistance-of-counsel claim as meritless.

Reasonable jurists would not debate the district court’s decision because the record supports the

state appellate court’s determination that Chambers’s right of confrontation was not violated

because the three witnesses were unavailable for trial and he had an opportunity to cross-examine

them on the issues pertinent to his trial during the preliminary examination. See Crawford, 541

U.S. at 53-54. Counsel is not ineffective for failing to pursue a meritless objection. Sutton v. Bell,

645 F.3d 752, 755 (6th Cir. 2011).

Chambers’s fifth claim is that the trial court lacked jurisdiction over his prosecution due to

an improper bindover to the trial court. He argued that the state district court abused its discretion

by finding probable cause to bind him over for trial based on the improper admission of testimony

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-7from propensity witnesses during the preliminary examination and the lack of eyewitness or

physical evidence connecting him to the crimes.

Reasonable jurists would not debate the district court’s determination that the state trial

court’s rejection of this claim on post-conviction review was neither contrary to nor an

unreasonable application of federal law. A probable cause finding “is not a constitutional

prerequisite to the charging decision.” Gerstein v. Pugh, 420 U.S. 103, 125 n.26 (1975). Instead,

the decision to bind over a defendant for trial presents an issue of state law. See Tegeler v. Renico,

253 F. App’x 521, 525-26 (6th Cir. 2007). Additionally, the “[determination of whether a state

court is vested with jurisdiction under state law is a function of the state courts, not the federal

judiciary.” Wills v. Egeler, 532 F.2d 1058,1059 (6th Cir. 1976) (per curiam); seeStrunkv. Martin,

27 F. App’x 473, 475 (6th Cir. 2001). Chambers has not shown “how this alleged violation of

state law affected his rights under the Federal Constitution.” Tegeler, 253 F. App’x at 525.

Chambers’s sixth claim is that the prosecutor maliciously prosecuted him and committed

misconduct during his trial,

He asserted that his prosecution was malicious because no

eyewitnesses identified him as the perpetrator, no physical evidence connected him to the crimes,

the witnesses who testified were not credible, and the evidence presented was not reliable. He

asserted that the prosecutor committed misconduct by bolstering and relying on Shroeder’s

testimony, denigrating both him and his defense, misstating Andre’s testimony concerning when

she experienced vaginal pain and her description of the color of the vehicle she saw hours before

she was assaulted, and presenting irrelevant and prejudicial testimony from his ex-girlfriend, Tracy

Drilling, concerning their sexual relations.

Reasonable jurists would not debate the district court’s determination that the state trial

court’s rejection of this claim on post-conviction review was neither contrary to nor an

unreasonable application of federal law. First, Chambers did not show that the State lacked

probable cause to bring the charges against him. The Due Process Clause prohibits vindictive

prosecution and prosecution based on an improper purpose “such as race, religion, or other

arbitrary classification,” but “so long as the prosecutor has probable cause to believe that the

accused committed an offense defined by statute, the decision whether or not to prosecute, and

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-8what charge to file or bring ... generally rests entirely in his discretion.” Bordenkircher v. Hayes,

434 U.S. 357, 364 (1978) (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). As previously

discussed, sufficient evidence was presented to convict Chambers of the charged offenses. And,

as the district court found, there is nothing in the record to indicate that the prosecutor’s decision

to charge Chambers with these crimes was vindictive or based on any improper purpose.

Second, Chambers did not show that the prosecutor committed misconduct during his trial.

A prosecutor’s comments at trial will not rise to the level of prosecutorial misconduct unless they

“so infected the trial with unfairness as to make the resulting conviction a denial of due process.”

Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974)). It is permissible for a prosecutor “to argue ‘reasonable inferences from the

evidence’” presented at trial. Webb v. Mitchell, 586 F.3d 383, 396-97 (6th Cir. 2009) (quoting

Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000)). And although a prosecutor may not denigrate

the defendant or his defense, see Wogenstahl v. Mitchell, 668 F.3d 307, 330-31 (6th Cir. 2012), a

prosecutor may “respond to the defense’s strategies, evidence and arguments” during closing

arguments. Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009). A prosecutor improperly

vouches for a witness “by indicating a personal belief in the witness’s credibility thereby placing

the prestige of the [government] behind that witness.” Wogenstahl, 668 F.3d at 328 (alteration in

original) (quoting Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2008)). “Generally, improper

vouching involves either blunt comments or comments that imply that the prosecutor has special

knowledge of facts not in front of the jury or of the credibility and truthfulness of witnesses and

their testimony.” Id. (quoting United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999)).

Chambers cites no facts or evidence to support his claims that the prosecutor improperly

bolstered Schroeder’s testimony and denigrated him and his defense. In any event, these claims

are not supported by the record because the prosecutor’s closing arguments lack any bolstering or

denigrating comments but are instead tied to evidence presented during the trial. Moreover, the

prosecutor did not misstate Andre’s testimony concerning when she experienced vaginal pain and

her description of the color of the vehicle that she saw hours before she was assaulted.

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-9Finally, Chambers failed to show that the prosecutor’s presentation of Drilling’s testimony

was improper. The trial court overruled Chambers’s relevancy objection and allowed Drilling’s

testimony. “A prosecutor may rely in good faith on evidentiary rulings made by the state trial

judge and make arguments in reliance on those rulings.” Cristini v. McKee, 526 F.3d 888, 900

(6th Cir. 2008).

For these reasons, the application for a certificate of appealability is DENIED and the

motion to proceed in forma pauperis is DENIED as moot.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nov 3, 2022

DEBORAH S. HUNT, Clerk

No. 22-1247

SHANE SWINDALL CHAMBERS,

P etitioner-Appellant,

v.

FREDEANE ARTIS, Acting Warden,

Respondent-Appellee.

Before: BATCHELDER, Circuit Judge.

JUDGMENT

THIS MATTER came before the court upon the application by Shane Swindall Chambers

for a certificate of appealability.

UPON FULL REVIEW of the record and any submissions by the parties,

IT IS ORDERED that the application for a certificate of appealability is DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Case 2:19-cv-11396-PDB-MKM ECF No. 12, PagelD.853 Filed 03/01/22 Page 1 of 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHANE S WINDALL CHAMBERS,

Petitioner,

CASE NO. 2:19-CV-11396

HONORABLE PAUL D. BORMAN

v.

MARK MCCULLICK,

Respondent.

JUDGMENT

The above-entitled matter having come before the Court, the Honorable Paul D.

Borman, United States District Judge, presiding, and in accordance with the Opinion and

Order entered on this date;

IT IS ORDERED AND ADJUDGED that the Petition for a Writ of Habeas

Corpus brought pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH

PREJUDICE.

KINIKIA ESSIX

CLERK OF THE COURT

Dated: March 1, 2022

By:

s/D. Tofil

Deputy Clerk

APPROVED BY:

s/Paul D. Borman

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Case 2:19-cv-11396-PDB-MKM ECF No. 11, PagelD.819 Filed 03/01/22 Page 1 of 34

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHANE SWINDALL CHAMBERS,

Petitioner,

CASE NO. 2:19-CV-11396

HONORABLE PAUL D. BORMAN

v.

MARKMCCULLICK,

Respondent.

OPTNTON & ORDER DENYING THE PETITION FOR A WRIT OF

HABEAS CORPUS. DENYING A CERTIFICATE OF APPEALABILITY, &

DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I.

Introduction

This is a pro se habeas case brought pursuant to 28 U.S.C. § 2254. Michigan

prisoner Shane Swindall Chambers (“Petitioner”) was convicted of first-degree

criminal sexual conduct using force and causing personal injury, MICH. COMP.

LAWS § 750.520b(l)(f), first-degree home invasion, MICH. COMP. LAWS

§ 750.110a(2), and assault with intent to do great bodily harm less than murder,

MICH. Comp. Laws § 750.84, following a jury trial in the Kent County Circuit

Court. He was sentenced, as a fourth habitual offender, Mich. Comp. LAWS

§ 769.12, to life imprisonment on the criminal sexual conduct conviction, a

consecutive term of 25 to 50 years imprisonment on the home invasion conviction,

Case 2:19-cv-11396-PDB-MKM ECF No. 11, PagelD.820 Filed 03/01/22 Page 2 of 34

and a concurrent term of 10 to 50 years imprisonment on the assault conviction in

2014. In his pleadings, Petitioner raises claims concerning the admission of other

acts evidence, the sufficiency of the evidence, the admission of preliminary

examination testimony for unavailable witnesses and the effectiveness of trial

counsel, the trial court’s jurisdiction, and the conduct of the prosecutor (alleged

malicious prosecution).

For the reasons set forth herein, the Court denies the habeas petition. The

Court also denies a certificate of appealability and denies leave to proceed in forma

pauperis on appeal.

II.

Facts and Procedural History

Petitioner’s convictions arise from a home invasion and assault upon on a

77-year-old woman in Kent County, Michigan on September 19, 2013. The

Michigan Court of Appeals described the underlying facts, which are presumed

correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d

410, 413 (6th Cir. 2009), as follows:

According to the evidence introduced at trial, the 77-year-old victim,

Barbara Andre, was sexually assaulted, beaten, and robbed during a

home invasion in the early morning hours of September 19, 2013.

Andre, who was asleep on her sofa when the attack began, could not

see her assailant, but she testified that, the previous afternoon, a young

man driving a light-colored car offered to help her carry some

packages into her house. Defendant drove a tan colored Lexus.

Further, Andre’s snake-skin purse was taken during the home

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invasion, and a similar purse was later seen in defendant’s possession

by Stacy Gatlin, Jeff McKee, Markeeta Minor, Ciesha Minor, and

Shannon Colvin. Colvin and others helped defendant use credit cards

from the purse to purchase gasoline for others in exchange for drugs.

Colvin testified that defendant told him that he got the purse by

“hitting a lick,” which means to “take something, rob, or steal from

somebody else.” Defendant also told Colvin that “it shouldn’t have

took me like two or three times to kick in the door,” and Andre’s front

door was damaged during the home invasion.

After receiving information that the perpetrator of Andre’s attack was

frequenting McKee’s apartment in a tan or brown Lexus, police began

to periodically drive pass McKee’s apartment and on one such

occasion they observed defendant driving the vehicle in question.

Police stopped defendant, at which time he fled on foot. When

defendant was apprehended, he had Andre’s credit card in his

possession as well as a credit card belonging to Cathie Nelson. Police

also recovered some of Andre’s items in the trash outside of McKee’s

apartment, and police found additional credit cards belonging to

Andre in a sewer, where they had been disposed of by Colvin.

Cathie Nelson testified at trial as a MRE 404(b) witness. She

explained that, on September 18, 2013, she was moving some items

from her home to a storage unit. Defendant, who was Nelson’s

neighbor at the time, offered to help her move some items, and Nelson

declined. Later that day, someone kicked in the sliding doors to

Nelson’s home and stole items from her house, including credit cards.

The prosecution also presented other acts evidence from Joan

Schroeder, who testified that, in 2003, when she was approximately

63 years old, she was awakened in her home by a loud noise.

Schroeder went to investigate the noise, at which time she was

grabbed on the arms by defendant and pushed backwards toward the

bed, where defendant then sexually assaulted her. While in her home,

defendant told Schroeder that he was attracted to older women.

People v. Chambers, No. 323024, 2015 WL 8538928, *1 (Mich. Ct. App. Dec. 10,

2015) (unpublished).

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Following his convictions and sentencing, Petitioner filed an appeal of right

with the Michigan Court of Appeals raising claims concerning the admission of

other acts evidence, the sufficiency of the evidence, and the admission of

preliminary examination testimony from unavailable witnesses and a related

ineffective assistance of counsel claim. The court denied relief on those claims and

affirmed Petitioner’s convictions and sentences. Id. at pp. 2-8. Petitioner filed an

application for leave to appeal with the Michigan Supreme Court, which was

denied in a standard order. People v. Chambers, 499 Mich. 970, 880 N.W.2d 552

(2016).

Petitioner subsequently filed a motion for relief from judgment with the state

trial court raising claims concerning the admission of the other acts testimony, the

trial court’s jurisdiction, his actual innocence, the conduct of the prosecutor

(malicious prosecution), the great weight of the evidence, and the effectiveness of

appellate counsel. The trial court denied the motion for lack of merit. People v.

Chambers, No. 14-000265-FC (Kent Cnty. Cir. Ct. June 8, 2017). Petitioner filed

a delayed application for leave to appeal with the Michigan Court of Appeals

which was denied for failure to establish that the trial court erred in denying relief

from judgment. People v. Chambers, No. 341487 (Mich. Ct. App. Jan. 9, 2018).

Petitioner also filed an application for leave to appeal with the Michigan Supreme

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Court, which was denied for failure to establish entitlement to relief under

Michigan Court Rule 6.508(D). People v. Chambers, 503 Mich. 885, 918 N.W.2d

817(2018).

Petitioner thereafter filed his federal habeas petition raising the following

claims:

I.

The state trial court violated his due process rights when it

allowed the prosecutor to admit propensity evidence.

II.

The state court’s rejection of his claim of insufficient evidence

(for first-degree criminal sexual conduct) was contrary to or

involved an unreasonable application of Supreme Court law.

III.

The state court’s rejection of his claim of insufficient evidence

(for first-degree home invasion and assault with intent to do

great bodily harm less than murder) was contrary to or involved

an unreasonable application of Supreme Court law.

IV.

The state court violated his right to a fair trial and to confront

witnesses by allowing the prosecutor to admit hearsay

statements (and trial counsel failed to object).

V.

The state court did not have jurisdiction to try and convict him

from the improper bindover.

VI.

The prosecutor maliciously prosecuted him by not using its

resources to uphold justice (and committed misconduct).

Respondent has filed an answer to the habeas petition contending that it

should be denied because the first and fourth claims are procedurally defaulted and

all of the claims lack merit.

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III.

Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal

courts must use when considering habeas petitions brought by prisoners

challenging their state court convictions. The AEDPA provides in relevant part:

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) (1996).

“A state court’s decision is ‘contrary to’ ... clearly established law if it

‘applies a rule that contradicts the governing law set forth in [Supreme Court

cases]’ or if it ‘confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme] Court and nevertheless arrives at a result different from

[that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam)

(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone,

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535 U.S. 685, 694 (2002). “[T]he ‘unreasonable application’ prong of

§ 2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court

identifies the correct governing legal principle from [the Supreme] Court but

unreasonably applies that principle to the facts of petitioner’s case.” Wiggins v.

Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also

Bell, 535 U.S. at 694. However, “[i]n order for a federal court find a state court’s

application of [Supreme Court] precedent ‘unreasonable,’ the state court’s

decision must have been more than incorrect or erroneous. The state court’s

application must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at

520-21 (citations omitted); see also Williams, 529 U.S. at 409. The “AEDPA thus

imposes a ‘highly deferential standard for evaluating state-court rulings,’ and

‘demands that state-court decisions be given the benefit of the doubt.’” Renico v.

Lett, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333, n. 7); Woodford v.

Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

A state court’s determination that a claim lacks merit “precludes federal

habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of

the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has

emphasized “that even a strong case for relief does not mean the state court’s

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contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S.

63, 75 (2003)). Pursuant to § 2254(d), “a habeas court must determine what

arguments or theories supported or ... could have supported, the state court’s

decision; and then it must ask whether it is possible fairminded jurists could

disagree that those arguments or theories are inconsistent with the holding in a

prior decision” of the Supreme Court. Id. Thus, in order to obtain habeas relief in

federal court, a state prisoner must show that the state court’s rejection of his

claim “was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Id.; see also White v. Woodall, 572 U.S. 415, 419-20 (2014).

Federal judges “are required to afford state courts due respect by overturning their

decisions only when there could be no reasonable dispute that they were wrong.”

Woods v. Donald, 575 U.S. 312, 316 (2015). A petitioner cannot prevail as long

as it is within the “realm of possibility” that fairminded jurists could find the state

court decision to be reasonable. Woods v. Etherton, 576 U.S. 113, 118 (2016).

Section 2254(d)(1) limits a federal habeas court’s review to a determination

of whether the state court’s decision comports with clearly established federal law

as determined by the Supreme Court at the time the state court renders its

decision. Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S.

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111, 122 (2009) (noting that the Supreme Court “has held on numerous occasions

that it is not ‘an unreasonable application of clearly established Federal law’ for a

state court to decline to apply a specific legal rule that has not been squarely

established by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26

(2008) (per curiam)); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Section

2254(d) “does not require a state court to give reasons before its decision can be

deemed to have been ‘adjudicated on the merits.”’ Harrington, 562 U.S. at 100.

Furthermore, it “does not require citation of [Supreme Court] cases-indeed, it

does not even require awareness of [Supreme Court] cases, so long as neither the

reasoning nor the result of the state-court decision contradicts them.” Early v.

Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16.

The requirements of clearly established law are to be determined solely by

Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly

established Federal law as determined by the Supreme Court’” and it cannot

provide the basis for federal habeas relief. Parker v. Matthews, 567 U.S. 37, 4849 (2012) (per curiam); see also Lopez v. Smith, 574 U.S. 1, 2 (2014) (per

curiam). The decisions of lower federal courts, however, may be useful in

assessing the reasonableness of a state court’s decision. Stewart v. Erwin, 503

F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671

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(8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).

A state court’s factual determinations are presumed correct on federal

habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this

presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d

358, 360-61 (6th Cir. 1998). Moreover, habeas review is “limited to the record

that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

IV.

Analysis

A.

Procedural Default

As an initial matter, Respondent contends that part of Petitioner’s first and

fourth habeas claims are barred by procedural default. The Court declines to

address this defense. Procedural default is not a jurisdictional bar to habeas

review. See Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005). Moreover,

federal courts on habeas review “are not required to address a procedural-default

issue before deciding against the petitioner on the merits.” Hudson v. Jones, 351

F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525

(1997)). The Supreme Court has explained the rationale behind such a policy:

“Judicial economy might counsel giving the [other] question priority, for example,

if it were easily resolvable against the habeas petitioner, whereas the

procedural-bar issue involved complicated issues of state law.” Lambrix, 520

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U.S. at 525. Such is the case here. The procedural issue is complex and the

substantive claims are more readily decided on the merits. Accordingly, the Court

shall proceed to the merits of the claims.

B.

Merits

1.

Admission of Other Acts Evidence (Habeas Claim I)

Petitioner first asserts that he is entitled to habeas relief because the trial

court erred in admitting propensity evidence, i.e. other acts evidence, through the

testimony of Cathie Nelson and Joan Schroeder. Respondent contends that this

claim is procedurally defaulted in part and that it is not cognizable and lacks merit.

Alleged trial court errors in the application of state evidentiary law are

generally not cognizable as grounds for federal habeas relief. See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas

court to reexamine state-court determinations on state-law questions”); Serra v.

Michigan Dep’t of Corr., 4 F.3d 1348, 1354 (6th Cir. 1993). “Trial court errors in

state procedure or evidentiary law do not rise to the level of federal constitutional

claims warranting relief in a habeas action, unless the error renders the proceeding

so fundamentally unfair as to deprive the petitioner of due process under the

Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004).

(quoting McGuire, 502 U.S. at 69-70); see also Wynne v. Renico, 606 F.3d 867,

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871 (6th Cir. 2010) (citing Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007));

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

Petitioner raised this claim on direct appeal and the Michigan Court of

Appeals denied relief. The court ruled that the other acts evidence was relevant

and properly admitted on the issue of identity as evidence of a common scheme,

plan, or system under Michigan Court Rule 404(b), that its admission was not

unfairly prejudicial under Michigan Court Rule 403 and any prejudice was

mitigated by the jury instruction on the proper consideration of such evidence, and

that if there was an error, such error was harmless due to the significant evidence

of Petitioner’s guilt presented at trial. Chambers, 2015 WL 8538928 at *2-4.

The state court’s decision is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. First, the evidence

was properly admitted under Michigan law. State courts are the final arbiters of

state law and federal courts will not intervene in such matters. Lewis v. Jeffers,

497 U.S. 764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987); see

also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“a state court’s interpretation of

state law, including one announced on direct appeal of the challenged conviction,

binds a federal court sitting on habeas review”); Sanford v. Yukins, 288 F.3d 855,

860 (6th Cir. 2002). Habeas relief does not lie for perceived errors of state law.

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Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal

habeas court to reexamine state-court determinations on state-law questions”).

Second, Petitioner fails to establish that the admission of the evidence

violated due process or rendered his trial fundamentally unfair. As to the

admission of other acts evidence, the Supreme Court has declined to hold that

similar “other acts” evidence is so extremely unfair that its admission violates

fundamental conceptions of justice. Dowling v. United States, 493 U.S. 342,

352-53 (1990). Thus, “[tjhere is no clearly established Supreme Court precedent

which holds that a state violates due process by permitting propensity evidence in

the form of other bad acts evidence.” Bugh, 329 F.3d at 512. Consequently, there

is no Supreme Court precedent that the state court decision can be deemed

“contrary to” under 28 U.S.C. § 2254(d)(1). Id. at 513; Adams v. Smith, 280 F.

Supp. 2d 704, 716 (E.D. Mich. 2003). Petitioner fails to state a claim upon which

habeas relief may be granted as to such an issue.

Moreover, Petitioner fails to show that the admission of the evidence

rendered his trial fundamentally unfair. The testimony from both witnesses was

relevant as evidence of Petitioner’s common plan or scheme of offering to assist

elderly women, later breaking into their homes, stealing from them and using their

credit cards, and/or sexually assaulting them. Furthermore, the risk of unfair

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prejudice was mitigated by the fact that the trial court instructed the jury on the

proper consideration of the evidence. Jurors are presumed to follow the court’s

instructions. See Penry v. Johnson, 532 U.S. 782, 799 (2001) (citing Richardson

v. Marsh, 481 U.S. 200, 211 (1987)); United States v. Powell, 469 U.S. 57, 66

(1984) (“Jurors ... take an oath to follow the law as charged, and they are expected

to follow it.”). Petitioner fails to show that the admission of the evidence was

erroneous or, more importantly for purposes of habeas review, that it rendered his

trial fundamentally unfair. Habeas relief is not warranted on this claim.

2.

Sufficiency of the Evidence (Habeas Claims II, III)

Petitioner next asserts that he is entitled to habeas relief because the

prosecutor presented insufficient evidence to support his convictions. In

particular, he alleges that the prosecutor failed to present sufficient evidence that

he sexually penetrated the victim as to the first-degree criminal sexual conduct

conviction and failed to present sufficient evidence that he was the perpetrator as

to all of the crimes. Respondent contends that these claims lack merit.

The Federal Due Process Clause “protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to constitute

the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970).

The question on a sufficiency of the evidence claim is “whether, after viewing the

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evidence in the light most favorable to the prosecution, any rational trier of fact

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

Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Jackson standard must be

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

as defined by state law.” Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006)

(quoting Jackson, 443 U.S. at 324 n. 16).

A federal habeas court views this standard through the framework of 28

U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus,

under the AEDPA, challenges to the sufficiency of the evidence “must survive

two layers of deference to groups who might view facts differently” than a

reviewing court on habeas review — the factfinder at trial and the state court on

appellate review - as long as those determinations are reasonable. Brown v.

Konteh, 567 F.3d 191, 205 (6th Cir. 2009). “[I]t is the responsibility of the jury

not the court - to decide what conclusions should be drawn from the evidence

admitted at trial.” Cavazos v. Smith, 565 U.S. 1,2 (2011) (per curiam). “A

reviewing court does not re-weigh the evidence or re-determine the credibility of

the witnesses whose demeanor has been observed by the trial court.” Matthews v.

Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459

U.S. 422, 434 (1983)). The “mere existence of sufficient evidence to convict...

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defeats a petitioner’s claim.” Id. at 788-89.

Under Michigan law, to convict a defendant of first-degree criminal sexual

conduct relative to the charged offense, the prosecution must prove that the

defendant engaged in sexual penetration with the victim using force or coercion to

accomplish that penetration and caused personal injury to the victim. MICH.

COMP. LAWS § 750.520b(f); People v. Perkins, 468 Mich. 448, 453, 662

N.W.2d 727 (2003). “Sexual penetration” is defined as “sexual intercourse,

cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of

any part of a person’s body or of any object into the genital or anal openings of

another person’s body, but emission of semen is not required.” MICH. COMP.

Laws § 750.520a®; People v. Garrow, 99 Mich. App. 834, 837; 298 N.W.2d 627

(1980).

The prosecution must prove every element of a charged offense beyond a

reasonable doubt. This burden includes proving that the defendant is the person

who committed the crime. People v. Oliphant, 399 Mich. 472, 489,250 N.W.2d

443 (1976); People v. Kern, 6 Mich. App. 406, 409, 149 N.W.2d 216 (1967).

Direct or circumstantial evidence and reasonable inferences arising from that

evidence may constitute satisfactory proof of the elements of an offense, People v.

Nowack, 462 Mich. 392, 399-400, 614 N.W.2d 78 (2000); People v. Jolly, 442

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Mich. 458, 466, 502 N.W.2d 177 (1993); including identity, Kern, 6 Mich. App. at

409-10, and intent or state of mind. People v. Dumas, 454 Mich. 390, 398, 563

N.W.2d 31 (1997); see also Nowack, 462 Mich, at 402-03.

The Michigan Court of Appeals considered these claims on direct appeal

and denied relief. Citing the Jackson standard and applicable state law, the court

ruled that the victim’s testimony, along with that of a nurse who examined the

victim, provided sufficient evidence of penetration to establish Petitioner’s guilt of

first-degree criminal sexual conduct. Chambers, 2015 WL 8538928 at *5. The

court also ruled that evidence of Petitioner’s possession of the victim’s credit

cards and a purse similar to hers, his comments to Shannon Colvin about kicking

in a door and “hitting a lick” and damage to the victim’s door during crime, and

the victim’s testimony that a young man driving a car similar to Petitioner’s

offered to help her on the day of the crime provided sufficient evidence to

establish that Petitioner was the perpetrator of the crimes. Id.

The state court’s decision is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. The victim’s

testimony that she was missing her underwear and that her vaginal area felt raw

and sore when she regained consciousness after the assault, along with the

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examining nurse’s testimony that the victim’s vaginal area was swollen, had

abrasions, and was painful to the touch and that such injuries were consistent with

penetration, provided sufficient evidence of penetration to support the first-degree

criminal sexual conduct conviction. To be sure, the testimony of a victim alone

can be constitutionally sufficient to sustain a conviction. See Tucker v. Palmer,

541 F.3d 652, 658 (6th Cir. 2008) (citing cases). Additionally, the testimony that

Petitioner possessed the victim’s credit cards and a purse similar to hers after the

assault, Colvin’s testimony relaying Petitioner’s statements about kicking in a

door and “hitting a lick” and the damage to the victim’s door, and the victim’s

testimony that a young man driving a car similar to Petitioner’s offered to help her

on the day of the crime, along with the similar acts evidence, provided sufficient

evidence of identity to support all of Petitioner’s convictions.

Petitioner challenges the witnesses’ credibility and the jury’s evaluation of

the testimony presented at trial, as well as the inferences the jury drew from the

evidence. However, it is the job of the fact-finder at trial, not a federal habeas

court, to resolve evidentiary conflicts. Jackson, 443 U.S. at 326; Martin v.

Mitchell, 280 F.3d 594, 618 (6th Cir. 2002); Walker v. Engle, 703 F.2d 959, 96970 (6th Cir. 1983) (“A federal habeas corpus court faced with a record of

historical facts that supports conflicting inferences must presume - even if it does

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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.”). The

jury’s verdict, and the Michigan Court of Appeals’ decision affirming that verdict,

were reasonable. The evidence presented at trial, viewed in a light favorable to

the prosecution, established Petitioner’s guilt of first-degree criminal sexual

conduct, first-degree home invasion, and assault with intent to commit bodily

harm less than murder beyond a reasonable doubt. Habeas relief is not warranted

on these claims.

3.

Admission of Hearsay/Ineffective Assistance (Habeas

Claim IV)

Petitioner next asserts that he is entitled to habeas relief because the trial

court erred in admitting hearsay in violation of state law and his confrontation

rights. Specifically, he alleges that the trial court erred in admitting the

preliminary examination testimony of Stacy Gatlin, Markeeta Minor, and Ciesha

Minor, who did not appear at trial, because the prosecution did not exercise due

diligence in attempting to locate and produce those witnesses. He relatedly asserts

that trial counsel was ineffective for failing to object to the admission of the

testimony. Respondent contends that this claim is waived in part, is procedurally

defaulted in part, and lacks merit.

The Michigan Court of Appeals considered this claim on direct appeal and

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denied relief. The court ruled that Petitioner waived the due diligence claim

because defense counsel expressed satisfaction with the prosecution’s efforts to

secure the witnesses. The court further ruled that Petitioner failed to establish that

trial counsel was ineffective because the admission of the witnesses’ preliminary

examination testimony was appropriate under state law and did not violate

Petitioner’s confrontation rights. Chambers, 2015 WL 8538928 at *6-8.

The state court’s decision is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. Waiver is an

‘“intentional relinquishment of a known right.’” United States v. Olano, 507 U.S.

725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). A

criminal defendant who waives rights “may not then seek appellate review of

claimed deprivation of those rights, for his waiver has extinguished any error.”

United States v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996) (citing Olano, 507 U.S.

at 733-34); see also Shahideh v. McKee, 488 F. App’x 963, 965 (6th Cir. 2012)

(“waiver is a recognized, independent and adequate state law ground for refusing

to review alleged trial errors”). The right to confrontation may be waived.

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314, n. 3 (2009). In this case,

trial counsel essentially agreed that the prosecution exhibited due diligence in

attempting to locate and produce the three witnesses and did not object to the

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admission of their preliminary examination testimony. Consequently, Petitioner

has waived review of this aspect of his claim. See United States v. Chun Ya

Cheung, 350 F. App’x 19, 21-22 (6th Cir. 2009).

Petitioner, however, also asserts that trial counsel was ineffective for failing

to object to the admission of the witnesses’ testimony. The Sixth Amendment to

the United States Constitution guarantees a criminal defendant the right to the

effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984),

the Supreme Court set forth a two-prong test for determining whether a habeas

petitioner has received ineffective assistance of counsel. First, a petitioner must

prove that counsel’s performance was deficient. This requires a showing that

counsel made errors so serious that he or she was not functioning as counsel as

guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the

petitioner must establish that counsel’s deficient performance prejudiced the

defense. Counsel’s errors must have been so serious that they deprived the

petitioner of a fair trial or appeal. Id.

To satisfy the performance prong, a petitioner must identify acts that were

“outside the wide range of professionally competent assistance.” Id. at 690. The

reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at

689. There is a strong presumption that trial counsel rendered adequate assistance

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and made all significant decisions in the exercise of reasonable professional

judgment. Id. at 690. The petitioner bears the burden of overcoming the

presumption that the challenged actions were sound trial strategy.

As to the prejudice prong, a petitioner must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. A reasonable probability is

one that is sufficient to undermine confidence in the outcome of the proceeding.

Id. “On balance, the benchmark forjudging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the [proceeding] cannot be relied on as having produced a

just result.” Strickland, 466 U.S. at 686.

The Supreme Court has confirmed that a federal court’s consideration of

ineffective assistance of counsel claims arising from state criminal proceedings is

quite limited on habeas review due to the deference accorded trial attorneys and

state appellate courts reviewing their performance. “The standards created by

Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in

tandem, review is ‘doubly’ so.” Harrington, 562 U.S. at 105 (internal and end

citations omitted). “When § 2254(d) applies, the question is not whether

counsel’s actions were reasonable. The question is whether there is any

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reasonable argument that counsel satisfied Strickland's, deferential standard.” Id.

In this case, Petitioner cannot establish that trial counsel erred and/or that he

was prejudiced by counsel’s conduct because the underlying claim lacks merit.

First, with respect to the admission of the testimony under state law, the Michigan

Court of Appeals determined that prosecution exercised due diligence to locate the

witnesses by contacting their families and local road patrols such that the

witnesses were unavailable and the admission of their preliminary examination

testimony was proper under state law. Such a determination is a state law issue,

see, e.g., Collier v. Lqfler, 419 F. App’x 555, 559-60 (6th Cir. 2011), that is

binding on federal habeas review. See Bradshaw v. Richey, 546 U.S. 74, 75

(2005); Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Given the Michigan Court of

Appeals’ determination that the testimony was properly admitted under state law,

Petitioner cannot establish that trial counsel erred or that he was prejudiced by

counsel’s conduct in this regard. Trial counsel cannot be deemed ineffective for

failing to make a futile objection or meritless argument. Tackett v. Trierweiler,

956 F.3d 358, 375 (6th Cir. 2020); Hoffner v. Bradshaw, 622 F.3d 487, 499 (6th

Cir. 2010).

Second, as to federal law, Petitioner’s confrontation rights were not violated

by the admission of the witnesses’ preliminary examination testimony. The

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Confrontation Clause of the Sixth Amendment guarantees a criminal defendant

the right to confront the witnesses against him or her. U.S. Const., Am. VI. One

of the main concerns of the Confrontation Clause is to ensure the reliability of

evidence through cross-examination. Maryland v. Craig, 497 U.S. 836, 845

(1990). The Confrontation Clause thus prohibits the admission of an out-of-court

testimonial statement at a criminal trial unless the witness is unavailable to testify

and the defendant had a prior opportunity for cross-examination. Crawford v.

Washington, 541 U.S. 36, 59 (2004). While the Sixth Circuit has noted that there

is “some question whether a preliminary hearing necessarily offers an adequate

prior opportunity for cross-examination for Confrontation Clause purposes.”

Al—Timimi v. Jackson, 379 F. App’x 435, 437—38 (6th Cir. 2010) (discussing

Vasquez v. Jones, 496 F.3d 564, 577 (6th Cir. 2007)), the Supreme Court has

never held that a defendant is denied the right of confrontation when a witness is

unavailable at trial and the court admits the witness’s preliminary examination

testimony. Al-Timimi, 379 F. App’x at 438.

In fact, the Supreme Court has found no Confrontation Clause violation by

the admission of an unavailable witness’s prior testimony when there was an

opportunity for cross-examination at the prior proceeding. See Mattox v. United

States, 156 U.S. 237 (1895) (prior trial testimony); Barber v. Page, 390 U.S. 719,

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725-26 (1968) (preliminary hearing testimony). A witness is ‘unavailable’ for

purposes of the exception to the confrontation requirement if the prosecution has

made a good faith effort to obtain the witness’s presence at trial. Barber, 390 U.S.

at 724-25; Winn v. Renico, 175 F. App’x 728, 733 (6th Cir. 2006). “The lengths

to which the prosecution must go to produce a witness, however, is a question of

reasonableness.” Winn, 175 F. App’x at 733 (citing California v. Green, 399 U.S.

149, 189, n. 22 (1970) (concurring opinion, citing Barber)). “The ultimate

question is whether the witness is unavailable despite good-faith efforts

undertaken prior to trial to locate and present that witness.... The prosecution bears

the burden of proof in this regard.” Id. (citations omitted).

In this case, the record shows that the trial court conducted a preliminary

examination in which both parties had the opportunity to question the witnesses

and did so. The prosecution was subsequently unable to locate and/or produce

those witnesses at trial. The police attempted to locate and produce the witnesses

by contacting their families and/or local road patrols and issuing material witness

warrants. One witness who was contacted was supposed to appear at trial, but

failed to do so. Such efforts were reasonable and diligent under the circumstances

such that the witnesses were unavailable at trial. Petitioner had an adequate

opportunity, and the same motive, to question the witnesses at the preliminary

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examination. Consequently, his confrontation rights were not violated by the

admission of the witnesses’ preliminary examination testimony at trial. See

Al-Timimi, 379 F. App’x at 438-40; see also Williams v. Bauman, 759 F.3d 630

636 (6th Cir. 2014) (citing Al-Timimi and denying habeas relief on similar claim).

Given the Michigan Court of Appeals’ ruling and this Court’s determination that

Petitioner’s confrontation rights were not violated by the admission of the

witnesses’ preliminary examination testimony, Petitioner cannot establish that

trial counsel erred or that he was prejudiced by counsel’s conduct. As noted, trial

counsel cannot be deemed ineffective for failing to make a futile objection or

meritless argument. Tackett, 956 F.3d at 375; Hoffner, 622 F.3d at 499. Habeas

relief is not warranted on this claim.

4.

Lack of Jurisdiction (Habeas Claim V)

Petitioner next asserts that he is entitled to habeas relief because the trial

court lacked jurisdiction to try him due to an improper bindover. Respondent

contends that this claim is not cognizable and that it lacks merit.

Petitioner raised this claim on post-conviction collateral review and the

state trial court denied his motion for relief from judgment for lack of merit.

Chambers, No. 14-000265-FC at *1.

The state court’s decision is neither contrary to Supreme Court precedent

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nor an unreasonable application of federal law or the facts. The Supreme Court

has held that the Federal Constitution does not require that a probable cause

hearing be conducted prior to a criminal trial. Gerstein v. Pugh, 420 U.S. 103,

119, 125 n. 26 (1975); Dillard v. Bomar, 342 F.2d 789, 790 (6th Cir. 1965).

Consequently, the bindover decision constitutes a state law issue which does not

implicate a federal constitutional right and is not subject to review in a federal

habeas proceeding. See Tegeler v. Renico, 253 F. App’x 521, 525-26 (6th Cir.

2007); Schacks v. Tessmer, No. 00-1062, 2001 WL 523533, *6 (6th Cir. May 8,

2001) (unpublished) (refusing to review state court determination that

second-degree murder conviction rendered bindover sufficiency of the evidence

challenge moot); Dorchy v. Jones, 320 F. Supp. 2d 564, 578-79 (E.D. Mich. 2004)

(denying habeas relief on state prisoner’s claim that there was insufficient

evidence to bind him over for trial). It is well-settled that federal habeas relief is

not available for perceived violation of state law. See, e.g:, Estelle v. McGuire,

502 U.S. 62, 67(1991).

Similarly, the determination of whether a state court is vested with

’Even under Michigan law, any error in the preliminary examination

proceeding is considered harmless once a valid conviction has been obtained. See

People v. Hall, 435 Mich. 599, 610-12, 460 N.W.2d 520 (1990); see also Redmond

v. Worthinton. 878 F. Supp. 2d 822, 844 (E.D. Mich. 2012).

i

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jurisdiction under state law over a criminal case is a function of the state courts,

not the federal courts. Wills v. Egeler, 532 F. 2d 1058, 1059 (6th Cir. 1976) (per

curiam); Daniel v. McQuiggin, 678 F. Supp. 2d 547, 553 (E.D. Mich. 2009).

A state court’s interpretation of state jurisdictional issues conclusively establishes

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

473, 475 (6th Cir. 2001). Consequently, Petitioner fails to state a claim upon

which federal habeas relief may be granted as to such issues. See Herron v.

Trierweiler, No. 18-2353, 2019 WL 6445422, *3 (6th Cir. July 10, 2019) (citing

Wills, supra, and denying a certificate of appealability to review such state law

claims). Habeas relief is not warranted on this claim.

5.

Malicious Prosecution (Habeas Claim VI)

Lastly, Petitioner asserts that he is entitled to habeas relief because the

prosecutor engaged in malicious prosecution and committed misconduct during

trial. Respondent contends that this claim lacks merit.

The United States Supreme Court has stated that prosecutors must “refrain

from improper methods calculated to produce a wrongful conviction.” Berger v.

United States, 295 U.S. 78, 88 (1935). To prevail on a claim of prosecutorial

misconduct, a habeas petitioner must demonstrate that the prosecutor’s conduct or

remarks “so infected the trial with unfairness as to make the resulting conviction a

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denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974);

Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly)-, see also

Parker v. Matthews, 567 U.S. 37, 45 (2012) (confirming that Donnelly/Darden is

the proper standard).

Petitioner raised this claim on post-conviction collateral review and the

state trial court denied his motion for relief from judgment for lack of merit.

Chambers, No. 14-000265-FC at *1.

The state court’s denial of relief is neither contrary to Supreme Court

precedent nor an unreasonable application of federal law or the facts. Petitioner

first asserts a claim of malicious prosecution, essentially arguing that the

prosecutor charged and prosecuted him based upon slim, improper, and

insufficient evidence. A prosecutor has significant discretion in determining what

charges to file against an accused provided that probable cause exists to believe

that an offense was committed by the accused under the charging statute.

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); United States v. Davis, 15

F.3d 526, 529 (6th Cir. 1994). A prosecutor, however, may not undertake a

prosecution based upon a vindictive motive, Bordenkircher, 434 U.S. at 363, or

based upon race, religion, or some other arbitrary classification. Oyler v. Boles,

368 US. 448, 456 (1962). In this case, the prosecutor had probable cause to

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believe that Petitioner was guilty of the charged offenses based upon statements

from the victim, the examining nurse, his own acquaintances, and the victims’ of

his other, similar offenses. To be sure, as the Michigan Court of Appeals and this

Court have found, there was sufficient evidence to support his convictions. There

is also no indication in the record that the prosecutor’s charging decision was

vindictive or based upon any impermissible factors. Petitioner fails to establish

that the prosecutor engaged in a malicious prosecution.

Petitioner also asserts that the prosecutor committed misconduct by

bolstering and relying upon the testimony of witness Joan Shroeder. It is

improper for a prosecutor to express his or her own personal opinions about the

credibility of a witness. United States v. Young, 470 U.S. 1,9-10 (1985); Hodge

v. Hurley, 426 F.3d 368, 378 (6th Cir. 2005). Such statements are improper

because they can convey the impression that the prosecutor has evidence not

presented to the jury which supports the charges against the defendant thereby

infringing upon the defendant’s right to be judged solely based upon the evidence

presented and because the prosecutor’s opinion carries with it the imprimatur of

the Government and may induce the jury to trust the Government’s judgment

rather than its own. Young, 470 U.S. at 18-19; Cristini v. McKee, 526 F.3d 888,

901 (6th Cir. 2008); see also Wilson v. Bell, 368 F. App’x 627, 633 (6th Cir.

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2010) (citing cases).

Petitioner, however, does not explain how the prosecutor improperly

bolstered Shroeder’s testimony. Conclusory allegations, without evidentiary

support, are insufficient to justify habeas relief. See Cross v. Stovall, 238 F.

App’x 32, 39-40 (6th Cir. 2007); Workman v. Bell, 178 F.3d 759, 111 (6th Cir.

1998) (conclusory allegations of ineffective assistance of counsel do not justify ^

federal habeas relief); see also Washington v. Renico, 455 F.3d 722, 733 (6th Cir.

2006) (bald assertions and conclusory allegations do not provide a basis for an

evidentiary hearing on habeas review). Moreover, the trial court found Shroeder’s

testimony to be relevant and admissible other acts evidence. It is well-settled that

a prosecutor’s good faith effort to admit evidence does not constitute misconduct,

particularly where, as here, the trial court admits the evidence. Cristini, 526 F.3d

4

at 900. Petitioner fails to establish that the prosecutor engaged in misconduct

which rendered his trial fundamentally unfair.

Petitioner also asserts that the prosecutor denigrated him and his defense. It

is inappropriate for a prosecutor to make personal attacks on a defendant or

defense counsel. United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996).

Prosecutors may not “make unfounded and inflammatory attacks on the opposing

advocate,” Young, 470 U.S. at 9, “or argue that counsel is attempting to mislead

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the jury.” West v. Bell, 550 F.3d 542, 565 (6th Cir. 2008). Prosecutors may,

however, highlight inconsistencies or inadequacies in the defense, Bates v. Bell,

402 F.3d 635, 646 (6th Cir. 2005), point out the lack of evidence supporting the

defense theory, United States v. Forrest, 402 F.3d 678, 686 (6th Cir. 2005), and

argue from the facts that a defense witness, including a testifying defendant, is not

worthy of belief. Portuondo v. Agard, 529 U.S. 61, 69 (2000); Cristini, 526 F.3d

at 901-02. In this case, Petitioner fails to provide examples of any such conduct

or otherwise support this claim with factual allegations. As discussed, conclusory

allegations do not provide a basis for habeas relief. See Cross, 238 F. App’x at

39-40; Workman, 178 F.3d at 771; see also Washington, 455 F.3d at 733.

Petitioner fails to show that the prosecutor engaged in misconduct which rendered

his trial fundamentally unfair.

Petitioner further asserts that the prosecutor engaged in misconduct by mischaracterizing the evidence, namely the victim’s statements about her vaginal pain

and the color of the vehicle she saw on the day of the crime. While a prosecutor

may not misstate the evidence, United States v. Carter, 236 F.3d 777, 784 (6th

Cir. 2001), or argue facts not in evidence, Abela v. Martin, 380 F.3d 915, 929 (6th

Cir. 2004), a prosecutor can make arguments based upon the evidence and has

‘“leeway to argue reasonable inferences from the evidence’ during closing

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arguments.” United States v. Crosgrove, 637 F.3d 646, 664 (6th Cir. 2011)

(quoting Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000)). Such was the case

here. The prosecutor’s argument was based on the police officer’s testimony

relaying the victim’s statements about vaginal pain after the crime and the

victim’s own trial testimony about the light-colored car that she saw on the day of

the crime. Petitioner fails to show that the prosecutor’s conduct was improper.

Lastly, Petitioner asserts that the prosecutor engaged in misconduct by

presenting testimony from his ex-girlfriend that he had sex with her when she was

passed out from drinking. Such evidence was arguably admissible under

Michigan Rule of Evidence 404(b) as evidence to show that Petitioner would have

sex with an unconscious victim. It is well-settled that a prosecutor’s good faith

effort to admit evidence does not constitute misconduct, particularly where, as

here, the trial court admits the evidence. Cristini, 526 F.3d at 900. Petitioner fails

to establish that the prosecutor engaged in misconduct which rendered his trial

fundamentally unfair. Habeas relief is not warranted on this claim.

V.

Conclusion

For the reasons stated, the Court concludes that Petitioner is not entitled to

habeas relief on his claims. Accordingly, the Court DENIES and DISMISSES

WITH PREJUDICE the petition for a writ of habeas corpus.

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Before Petitioner may appeal, a certificate of appealability must issue. See

28 U.S.G. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability

may issue only if a petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on the

merits, the substantial showing threshold is met if the petitioner demonstrates that

reasonable jurists would find the court’s assessment of the claim debatable or

wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court concludes

that Petitioner fails to make a substantial showing of the denial of a constitutional

right as to his claims. Accordingly, the Court DENIES a certificate of

appealability.

Lastly, the Court concludes that an appeal from this decision cannot be

taken in good faith. See FED. R. APP. P. 24(a). Accordingly, the Court DENIES

leave to proceed in forma pauperis on appeal. This case is CLOSED.

IT IS SO ORDERED.

s/Paul D. Borman

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: March 1, 2022

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHANE SWINDALL CHAMBERS,

Petitioner,

CASE NO. 2-.19-CV-11396

HONORABLE PAUL D. BORMAN

v.

MARKMCCULLICK,

Respondent.

/

ORDER TRANSFERRING PETITIONER’S MOTION

FOR A CERTIFICATE OE APPEALABILITY (ECF NO. 13) TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

This matter is before the Court on Petitioner’s motion for a certificate of

appealability concerning the Court’s March 1, 2022 Opinion and Order denying and

dismissing with prejudice his petition for writ of habeas corpus. The Court denied a

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

Opinion and Order denying the habeas petition. Consequently, the Court construes

Petitioner’s motion as a request for reconsideration. See Jackson v. Crosby, 437 F.3d

1290, 1294 n. 5 (llthCir. 2006); Lyons v. Lafler, No. 2:10-CV-11386, 2013 WL 812083,

*1 (E.D. Mich. Mar. 5, 2013); Pettigrew v. Rapelje, No. 08-12530-BC, 2008 WL

4186271, *1 (E.D. Mich. Sept. 10, 2008).

Having reviewed the matter, the Court finds no reason to reconsider its prior

decision. A motion for reconsideration which presents issues already ruled upon by the

Case 2:19-cv- 11396-PDB-MKM ECF No. 17, PagelD.925 Filed 03/28/22 Page 2 of 2

Court, either expressly or by reasonable implication, will not be granted. Hence v. Smith,

49 F. Supp. 2d 547, 550 (E.D. Mich. 1999); Czajkowski v. Tindall & Assoc., P.C., 967 F.

Supp. 951, 952 (E.D. Mich. 1997). Such is the case here.

When a district court denies a certificate of appealability, the proper procedure is

for a habeas petitioner to file a motion for a certificate of appealability with the appellate

court. See Sims v. United States, 244 F.3d 509 (6th Cir. 2011) (citing Fed. R. App. P.

22(b)(1)). Accordingly, in the interest of justice, the Court transfers the motion for a

certificate of appealability (ECF No. 13) to the United States Court of Appeals for the

Sixth Circuit.

IT IS SO ORDERED.

s/Paul D. Borman

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: March 28, 2022

2

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

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