Petition for Writ of Certiorari — Glenna Duram, Petitioner v. Jeremy Howard, Warden

*,

APPENDIX A

%

<•*

I

APPENDEX A

No. 24-1195

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Sep 16, 2024

KELLY L. STEPHENS, Clerk

GLENNA DURAM,

)

)

)

Petitioner-Appellant,

1

v.

ORDER

)

)

)

)

)

JEREMY HOWARD, Warden,

Respondent-Appellee.

V

; . ,-i; niJ:

Before: MATHIS, Circuit Judge)/; !

1'Ulv i 1 ill

.. U ■ ClJJ i

.•

.3. ?')24

..

!:Pi .£:MS, Cb:,t

Glenna Duram, a Michigan prisoner proceeding pro se, appeals a district court judgment

denying her petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. The court construes

the notice of appeal as a request for a certificate of appealability. See 28 U.S.C. § 2253(c); Fed.

R. App. P. 22(b)(2). Duram moves for pauper status on appeal.

In May* 2015, Duram’s neighbor discovered Duram’s husband, Martin, deceased, and

Duram, injured, in their home. Both Martin and Duram had been shot; Martin died from multiple

gunshot wounds, and Duram survived. An investigation led police to charge Duram with Martin’s

murder.

After a trial, a jury found Duram guilty of first-degree premeditated murder and

.. .

possession of a firearm during the commission of a felony. She was sentenced to serve consecutive

prison terms, of,life, without.parole .for the murder conviction and two years for the firearm

conviction. The Michigan Court of Appeals affirmed Duram’s convictions, People v. Durum, No.

340486, 2019 WL 1924935 (Mich. ,Ct. App. Apr. 30, 2019) (per curiam), and the Michigan

Supreme Court denied leave to appeal, People v. Dwram, 936 N.W.2d 306 (Mich. 2019) (mem.).

In 2020, Duram filed a § 2254 habeas corpus petition, asserting one evidentiary claim.

Duram also moved to stay the proceeding to allow her to exhaust additional claims in the state

courts, which the district court granted. So, Duram returned to the state courts and moved for

. . :. airy : Jiuiu uuru.*.

»;.

. > 4

1 .

; - . ^;. v

. ...

.'U.iN ...‘

V; v.. I

-.Ui.A Ki.

.

-i i

*.v

No. 24-1195

-2-

relief from judgment. The trial court denied Duram’s motion; and the state appellate courtS'denied

leave to appeal. See People v. Duram, 986 N.W.2d 912 (Mich. 2023) (mem.).

Duram then moved to reopen her § 2254 habeas corpus proceeding and submitted an

amended petition, claiming that (1) the trial court violated her due-process rights “by admitting

unfairly prejudicial hearsay evidence from an internet website,” (2) trial counsel were ineffective

because they did not “call any witnesses,” remove biased jurors, “file any pretrial motions to

exclude evidence,” and secure “forensic, DNA, digital, and medical” experts, and (3) appellate

counsel were ineffective because they did not present her ineffective-assistance-of-trial-counsel

' \ i.,

/

claims and did not advise her “of the potential conflict of interest” of trial counsel also representing

her on appeal. After reopening the case, the district court denied Duram’s habeas corpus petition

and denied a certificate of appealability. ^

A certificate of appealability may be issued 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) (citation omitted). A. ceitificate-of-appealability analysis is different from “a merits

analysis.” Buck v. Davis, 580JJ.S. ipO, 115 (2017). 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. &1116 (alteration in original) (quoting Miller-El, 537 U'.S. at

327,348).

............

..t.V.'ll iK..

ADMISSION OF EVIDENCE.....,

In her first claim, Duram challenged the admission of evidence “from an internet website.”

Duram asserted that the prosecution introduced the evidence to show premeditation in,that she

accessed websites about Ruger firearms to learn how to use them to kill Martin. She pointed lo

Michigan State .Police Detective^.JeffrHoffipan’s testimony .about the Ruger firearms websites,

specifically Hoffman’s testimony^that(he,did not know and.could not determine the content, of

: tlii’k

vi', .

i .. ;

. ;

ij. iry m. j die uu-i-v: %!

o!.‘ ' M. al i !6

X,

, ;

\

k

No. 24-1195

-3-

those websites. She argued that the evidence should have been excluded because it was unfairly

prejudicial, hearsay, and misleading under the Michigan Rules of Evidence.

Hoffman testified that he performed a digital extraction on an LG and a Kyocera cell phone

for May 11 to May 12, 2015. Hoffman described a string of web activity on the Kyocera cell

phone, which was Duram’s phone, around 3:30 a.m. on May 12, 2015. Specifically, the phone

viewed the following web pages: Ruger Safety Announcements, Ruger Inside and Out, Ruger

Safety Bluebook, Ruger New Model Single-Six, Single-Action Revolvers. Hoffman testified that

he did not know what information was on the Ruger web pages accessed by the Kyocera cell

.\k.

.

phone. Nor could he state who was using the Kyocera cell phone when it accessed the Ruger web

pages.

...

..

The Michigan Court of Appeals concluded that the Kyocera cell phone website activity

was neither inadmissible hearsay nor unfairly prejudicial. Duram, 2019 WL 1924935, at *2-4. .It

found that the Ruger firearm, websites ‘‘were not hearsay” because they “were not assertions” in

that they could not be offered for their truth and the record lacked any evidence that the websites

were accessed to express either a factor an opinion. Id., at .*2. It further found that the websites

were relevant because they provided circumstantial. evidence of premeditation—that ;Duram

“accessed webpages related to the murder weapon in contemplation of killing Martin.” Id. at *3.

And it concluded that the^evidence^was, not unfairly prejudicial but “highly probative of

deliberation and premeditation” given Hoffman’s testimony that the websites were accessed “over

the course of more than an hour” coupled with additional evidence that the murder weapon was a

single-shot Ruger revolver requiring “the shooter to cock the hammer each time before pulling the

trigger” to shoot Martin multiple times to kill him. Id. at *4. The state appellate court concluded

that the due-process portion of Duram’s evidentiary claim;was unpreserved and, on plain-error

review, that no plain error occurred. Id.. .. 11 v' J»•;

...

at

v.V..

l.

The district court rejected Duram’s evidentiary claim as non-cognizable and procedurally

defaulted. Reasonable jurists would not debate the district court’s decision. “In general, alleged

errors in evidentiary rulings by state courts are not cognizable in federal habeas review,” but habeas

CIS I

V.. .

-1

1'

No. 24-1195

-4-

relief may be granted if “the state’s evidentiary ruling is so fundamentally unfair that it rises to the

level of a due-process violation.” Moreland v. Bradshaw, 699 F.3d 908, 923 (6th Cir. 2012)

(quoting Collier v. Lafler, 419 F. App’x 555, 558 (6th Cir. 2011)); see Estelle v. McGuire, 502

U.S. 62, 67-68 (1991). Duram failed to show that any error by the state trial court in applying

Michigan evidentiary rules rose “to the level of a due-process violation.” See Moreland, 699 F.3d

at 923 (quoting Collier, 419 F. App’x at 558). And “the Supreme Court has never held (except

perhaps within the capital sentencing context) that a state trial court’s admission of relevant

evidence, no matter how prejudicial, amounted to a violation of due process.” Blackmon v. Booker,

696 F.3d 536, 551 (6th Cir. 2012). In addition, 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) (citations omitted). ,

The due-process portion of Duram’s evidentiary claim is procedurally defaulted. Duram

failed to comply with Michigan’s procedural rule requiring appellants to preserve issues for review

by contemporaneously objecting to purported errors at trial when she did not object to the

admission of the challenged evidence on the same grounds argued on appeal. See Theriot v.

Vashaw, 982 F.3d 999, 1003 (6th Cir. 2020). The Michigan Court of Appeals enforced the

procedural rule when it reviewed Duram’s due-process evidentiary claim for plain error, because

plain-error review “is enforcementof a procedural rule.” Id. at 1004 (citation omitted); see Duram,

2019 WL 1924935, at *4. And “Michigan’s contemporaneous-objection rule ‘constitutes an

adequate and independent state ground for foreclosing federal review.’” Theriot, 982 F.3d at 1004

(quoting Taylor v. McKee, 649 F.3d 446,451 (6th Cir. 2011)).

Duram offered no explanation for her failure to object to the due-process portion of her

evidentiary claim that would establish cause to excuse her procedural default. Because Duram did

not show cause, it is not necessary to address prejudice. See Coleman v. Thompson, 501 U.S. 722,

750 (1991). And Duram did not show that failure to consider the due-process portion of her

evidentiary claim would result in a fundamental miscarriage of justice. See id.

• 1

. . :i .t

No. 24-1195

-5INEFFECTIVE ASSISTANCE OF COUNSEL

Duram’s second and third claims alleged ineffective assistance of trial and appellate

counsel. Duram presented these claims to the Michigan courts on post-conviction review, but

those courts denied them on procedural grounds without reviewing their merits. The district court,

noting that Duram could not have raised her ineffective-assistance-of-appellate counsel claims

earlier and could arguably show cause for failing to raise her ineffective-assistance-of-trial-counsel

claims on direct appeal, reviewed these claims de novo and concluded that they lacked merit. See

Handv. Houk, 871 F.3d 390,408 (6th Cir. 2017).

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Duram’s second claim is that trial counsel were ineffective because they did not “call any

witnesses,” remove biased jurors, “file any pretrial motions to exclude evidence,” or secure

“forensic, DNA, digital, and medical” experts. She argued that defense experts “likely would have

provided a different viewpoint” to show the jury “that the story told by the evidence was not at all

clear.”

She admitted that her behavior was suspicious but asserted that “there were other

circumstances that pointed toward another shooter.” Duram also argued that “the jurors in seats 2

and 3” were biased because they stated during jury selection that they “were against open carry

and guns in general,” that counsel should have challenged those jurors for cause, and that counsel’s

failure to do so likely had a negative, effect on the verdict because her case involved a gun and

Martin’s death was caused by gunshot wounds.

.

To establish ineffective assistance of counsel, a defendant must show deficient

performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). The

performance inquiry requires the defendant to “show that counsel’s representation fell below an

objective standard of reasonableness.” Id. at 688. The prejudice inquiry requires the defendant to

“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. “[Cjounsel is strongly presumed to have

rendered adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Id. at 690.,

*

No. 24-1195

-6Reasonable jurists would not debate the district court’s rejection of Duram’s ineffective-assistance-of-trial-counsel claims. First, counsel’s decision whether to call a witness to testify is

a strategic decision entitled to deference. See id.; Tinsley v. Million, 399 F.3d 796, 810 (6th Cir.

2005). Duram did not identify any witnesses who would have testified and what their testimony

would have been. Her speculation that potential witnesses existed cannot support an ineffectiveassistance claim. See Fautenberry v. Mitchell, 515 F.3d 614, 634 (6th Cir. 2008). Second,

Duram’s ineffective-assistance claim based on the failure to challenge two jurors for bias is

unsupported and conclusory. Conclusory arguments in support of general ineffective-assistance

claims “are insufficient to overcome the presumption of reasonable professional assistance and are

insufficient to warrant habeas. relief.” ^.Wogenstahl v. Mitchell, 668 F.3d 307, 335-36 (6th Cir.

2012). The record does not show that any juror expressed opposition to guns and open carry laws

during jury selection or that any juror was actually or implicitly biased against Duram. To support

an ineffective-assistance claim based on counsel’s failure to challenge a biased juror, the defendant

must show actual bias, Miller^y.grands, 269F,3d 609,;616 (6th Cir. 2001), or implied bias,

Cunningham v. Shoop, 23 F.4th 636, 661 (6th Cir. 2022), on the part of the juror in question.

Duram failed to do so., v ,, •

jhiini

i;.:. .

Third, Duram’s ineffective-assistance claim based on the failure to file pretrial motions to

exclude evidence .was also .unsupported,.and conclusoiy. u See Wogenstahl, 668 F.3d at 335-36.

Moreover, as the district court noted, counsel moved during trial to exclude the evidence of

websites about Ruger firearms accessed by Duram’s cell phone, and Duram did not identify any

pretrial motions that counsel should have filed or show that any pretrial motions not filed; .would

have resulted in,a different outcome,jaFourth, Duram failed to show that counsel’s decision ,to

cross-examine the prosecution’s expg|t(yvitnesses,rathepthan to present expert,testimony was

anything but strategic. “[S]trategicv choices made after thorough investigation of law andiacts

relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. But even

if counsel’s failure to present expert testimony could be deemed deficient performance, Duram did

not demonstrate prejudice, ^.Given^counsel’s thorough cross-examination of the prosecution’s

.. .'a.:.

i.1. i.

.v a vu.-’irt.s :uvcsseu i.\

No. 24-1195

-7-

experts, Duram failed to show that, had counsel presented expert witnesses instead, there is a

reasonable probability that the result of the trial would have been different. See id. at 694. Duram

neither identified any experts that trial counsel should have retained nor indicated how any

particular experts would have testified in support of the defense. See Hanna v. Ishee, 694 F.3d

596, 619 (6th Cir. 2012).

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Duram’s third claim alleged that appellate counsel were ineffective because they did not

present her ineffective-assistance-of-trial-counsel claims and did not advise her “of the potential

conflict of interest” of trial counsel also representing her on appeal. She claimed that appellate

counsel would not raise issues of their own ineffectiveness at trial.

“[Ineffective assistance of appellate counsel claims are governed by the same Strickland

standard as claims of ineffective assistance of trial counsel.,” Shaneberger v. Jones, 615 F.3d 448,

452 (6th Cir. 2010) (citing Smith v. Robbins, 528 U.S. 259,285 (2000). An attorney is not required

“to raise every non-frivolous issue on appeal.” Caver v. Straub, 349 F.3d 340,348 (6th Cir. 2003)

(citing Jones v. Barnes, 463 U.S. 745,, 751 (1983)). Indeed, “‘winnowing out weaker arguments

on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence,

is the hallmark of effective appellate advocacy.” Smith v. Murray, All U.S. 527, 536 (1986)

(quoting Jones, 463 U.S. at 751-52). Where, as here, appellate counsel “presents one argument

on appeal rather than another... the petitioner must demonstrate that the issue not presented ‘was

clearly stronger than issues that counsel did present’” to establish ineffective assistance. Caver,

349 F.3d at 348 (quoting Robbins, 528 U.S. at 288). ,

There is no presumption of prejudice when a defendant claims ineffective assistance of

appellate counsel based on alleged conflict of interest from the same representation at trial and on

appeal. Whiting v. Burt, 395 F.3d 602, 619 (6th Cir. 2005). Instead, the defendant must still

establish that counsel’s performance was deficient and that he was prejudiced by counsel’s conduct

or omissions. See id.’, see Strickland, 466 U.S. at 687. Because Duram’s underlying ineffectiveassistance-of-trial-counsel claims lack merit, reasonable jurists would agree that appellate counsel

V.

fc.-

No. 24-1195

-8-

was not ineffective for omitting those issues on direct appeal. See Greer v. Mitchell, 264 F.3d 663,

676 (6th Cir. 2001).

Therefore, Duram’s application for a certificate of appealability is DENIED, and her

motion for pauper status is DENIED as moot.

ENTERED BY ORDER OF THE COURT

jS'nlv

.Ck; UC.

i;.

* /•

.

tJ1:

.i iipp.icaiiui 1 - vJ-

V/ .

V

,1, •

j

t

APPENDEX B

' *

o

Neutral

As of: November 7, 2024 1:36 PM Z

Duram v. Howard

United States District Court for the Eastern District of Michigan, Southern Division

February 1,2024, Decided; February 1, 2024, Filed

Case No. 2:20-CV-13429

Reporter

2024 U.S. Dist. LEXIS 17931 *; 2024 WL 388089

GLENNA MARY DURAM, Petitioner, v. JEREMY

HOWARD, Respondent,

Subsequent History: Class certification denied by,

Motion denied by, As moot Duram v. Howard. 2024 U.S.

Add. LEXIS 23587 (6th Cir., Seat. 16. 2024)

Huron Valley Women's Correctional Facility in Ypsilanti,

Michigan, filed a pro se petition for writ of habeas

corpus pursuant to 28 U.S.C. $ 2254. challenging her

convictions for first-degree premeditated murder, MICH.

COMP. LAWS 8 750.316(1)ta). and felony-firearm,

MICH. COMP. LAWS S 750.227b. For the reasons that

follow, the petition for writ of habeas corpus is DENIED.

Prior History: Duram v. Howard. 2021 U.S. Dist LEXIS

53195. 2021 WL 1087440 ( E.D. Mich.. Mar. 22. 2021)

I. Background

Core Terms

ineffective, cell phone, state court, trial counsel, habeas

corpus, neighbor, jurors, appellate counsel, prejudicial,

procedural default, certificate, websites, ineffective

assistance, federal court, writ petition, due process, trial

court, deliberation, questioned, hearsay, murder, blood,

scene, expert witness, cross-examine, witnesses,

accessed, argues, biased, shot

Counsel: [*1] Glenna Duram, Petitioner, Prose,

Ypsilanti, Ml USA.

For Jeremy Howard, Warden, Respondent: Andrea M.

Christensen-Brown, Marissa Wiesen, Michigan

Department of Attorney General, Lansing, Ml USA.

Judges: HONORABLE Sean F. Cox, Chief United

States District Judge..

Opinion by: Sean F. Cox

Opinion

OPINION AND ORDER DENYING THE PETITION FOR

WRIT OF HABEAS CORPUS. DECLINING TO ISSUE

A CERTIFICATE OF APPEALABILITY. AND

DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Glenna Mary Duram, ("Petitioner"), confined at the

Petitioner was convicted following a jury trial in the

Newaygo County Circuit Court of killing her husband

Martin Duram. This Court recites verbatim the relevant

facts regarding petitioner's conviction from the Michigan

Court of Appeals's opinion, which are presumed correct

on habeas review pursuant to 28 U.S.C. 8 2254(e)(1).

See e.g. Wagner v. Smith. 581 F.3d 410. 413 (6th Cir.

2009):

As defendant's neighbor and close friend was

heading to work at 7:30 a.m. on May 12, 2015, she

heard [*2] two shots fired. She was not alarmed,

however, because she knew Martin hunted in the

area. Later that day she received a call from her

husband, who reported that Martin, with whom he

regularly communicated, was not responding to his

texts. After work, the neighbor went over to

defendant's house. She knocked on the outer doors

and windows. All of the doors were locked. No one

appeared to be home except for the dog, which she

could hear barking in the master bedroom when

she called its name. Later that evening, the

neighbor sent defendant a text asking if she and

Martin were home. She received no response.

The next morning, the neighbor went back over to

defendant's house. The home was still quiet except

for the dog barking, and there was no sign of

defendant or Martin. At around 3:30 p.m., the

neighbor decided to check again to see if defendant

was home. This time, defendant's front door was

Page 2 of 9

2024 U.S. Dist. LEXIS 17931, *2

unlocked. The neighbor entered the house and saw

that the living room was in disarray. She walked

into the master bedroom, observed and stepped

over some blankets on the floor, and found Martin

lying on the floor in a pool of blood. She realized

that defendant was lying underneath the blankets.

Defendant's [*3] face was pale, and her hair was

matted in blood. Believing both Martin and

defendant to be dead, the neighbor ran to a nearby

house to summon help.

The neighbor returned with three firemen who had

been responding to an unrelated incident nearby.

As she walked back into defendant's bedroom, the

neighbor thought defendant's head was now in a

slightly different position than it was before, but she

said nothing, thinking it was simply her imagination.

When police arrived, the neighbor undertook to

assist them by tending to the dog, which had curled

up next to Martin and was growling at the strangers.

When the neighbor heard an officer speak to

defendant, she turned in that direction and saw

defendant sit upright. The police officer testified that

when he arrived at the scene, defendant did not

appear to be dead. As he felt for her pulse, she

suddenly opened her eyes, sat upright, and

became combative. She was subdued and

transported by ambulance to the hospital.

Defendant's neurosurgeon testified regarding two

bullet wounds on the right side of defendant's skull,

near her ear; they appeared to be several hours

old, were non-lethal, and could possibly result in no

loss of consciousness, [*4] allowing the person to

be ambulatory. Martin was confirmed to be dead at

the scene. On the master bed were several fired

cartridge casings, an unfired cartridge. On the

bedroom floor was a key to Martin's gun safe.

Police searched the home and found the murder

weapon, a .22 caliber Ruger revolver,1 a pillow with

holes in it, defendant's Kyocera cell phone, Martin’s

LG cell phone, as well as other items that were

seized as evidence. Defendant's blood was found

on items in the living room and kitchen. Police later

seized a manila envelope that Martin's adult

children found in the living room. The manila

envelope contained three white envelopes, one

each

addressed

to defendant's daughter,

defendant's ex-husband, and defendant's son; a

1 The gun was linked to the murder by way of identifying marks

on the cartridge casings, as well as a holster, found in the gun

safe, that was believed to be for the Ruger. (Footnote original).

forensic document examiner deemed the letters to

be in defendant's handwriting. In the letters,

defendant apologized for reasons that were vague,

apologizing in one letter for "messing up." Evidence

was also admitted at trial regarding significant

financial problems defendant had been attempting

to hide from Martin, including an impending home

foreclosure.

Dr. Brian Hunter performed an autopsy and

concluded that Martin died from multiple gunshot

wounds. There [*5] were five gunshot wounds,

some of which were fired at close range and

passed through his lungs and heart. Dr. Hunter

deemed the manner of death a homicide.

Defendant moved to suppress admission of data

extraction reports of the cell phone usage for the

LG and Kyocera cell phones and objected to

testimony by the detective who performed the

extractions regarding what he found. The trial court

denied defendant's motion and admitted the

evidence. The detective testified that he performed

a logical extraction, a file system extraction, and a

physical extraction on defendant's Kyocera cell

phone and obtained data from 9:00 p.m. on May

11, 2015 to 7:00 a.m. on May 12, 2015. A text

message was sent from defendant's cell phone at

11:40 p.m. on May 11, 2015, to a recipient whose

number bore the label "mom." At 3:28 a.m. on May

12, 2015, the cell phone received a text from "mom"

that responded to the 11:40 p.m. text message.

Then the user of the Kyocera cell phone opened

the cell phone's web browser and proceeded to

access the following websites relating to Ruger

guns:

3:32 a.m.: "Ruger Safety Announcements"

3:33 a.m.: "Ruger Inside and Out

3:34 a.m.: "Ruger Safety Bluebook"

3:35 a.m.: "Ruger Safety [*6] Announcements"

At 4:48 a.m., the cell phone user sent a text

message to "mom" that stated: "Love you. Sorry."

Nine seconds later, the user accessed a web page

titled "Ruger New Model Single-Six, Single Action

Revolvers." No further web activity or outgoing text

messages occurred after 4:55 a.m. on May 12,

2015. The detective testified that neither the LG cell

phone nor the Kyocera cell phone were password

protected.

People v. Duram. No. 340486. 2019 Mich. Add. LEXIS

1438. 2019 WL 1924935. at *1-2 (Mich. Ct. Add. Apr.

30.-2Q1Madditional footnote omitted); Iv. den. 505

7

Page 3 of 9

2024 U.S. Dist. LEXIS 17931, *6

Mich. 941, 936 N.W.2d 306 (2019).

Petitioner filed a petition for writ of habeas corpus,

which was held in abeyance so that petitioner could

exhaust additional claims in the state courts. Duram v.

Howard. No. 2:20-CV-13429. 2021 U.S. Dist. LEXIS

53195. 2021 WL 1087440. at *1 (E.D. Mich. Mar. 22.

2021).

Petitioner filed a post-conviction motion for relief from

judgment with the trial court pursuant to M.C.R. 6.500,

et. seq., which was denied. People v. Duram, No. 1611473-FC (Newaygo Cty.Cir.Ct., June 15, 2022). The

Michigan appellate courts denied petitioner leave to

appeal. People v. Duram. No. 362784. 2022 Mich. Add.

LEXIS 6098 (Mich.Ct.Aop. Oct. 11. 2022): Iv. den. 511

Mich. 903, 986 N.W.2d 912 (Mich. 2023).

The case was subsequently reopened and petitioner

was permitted to file an amended habeas petition. (ECF

No. 15).

Petitioner seeks a writ of habeas corpus on the following

grounds:

I. The trial court violated Glenna Mary Duram's

constitutional protections of due process by

admitting unfairly prejudicial hearsay evidence from

an internet website. The admission of the hearsay

evidence was [*7] unfairly prejudicial to defendantappellant and misleading to the jury. The trial court

should have excluded the evidence.

II. Both defense attorneys provided [constitutionally]

ineffective assistance as trial counsel for failing to

call any witnesses on Ms. Duram's behalf, allowing

biased jurors to remain, failing to file any pretrial

motions to exclude evidence, and [failing] to

procure expert forensic, DNA, and medical experts

on Ms. Duram's behalf.

III.

Both

defense

attorneys

provide[d]

[constitutionally ineffective] assistance as appellate

counsel for failing to raise the issues of merit in

issue I above and for failing to advise Ms. Duram of

the potential conflict of interest and consequences

of having Q trial attorneys act as appellate counsel

on her behalf.

II. Standard of Review

28 U.S.C. $ 2254(d). as amended by The Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA),

imposes the following standard of review for habeas

cases:

An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of

a State court shall not be granted with respect to

any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of

the claim- [*8J

(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.

A decision of a state court is "contrary to" clearly

established federal law if the state court arrives at a

conclusion opposite to that reached by the Supreme

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

case differently than the Supreme Court has on a set of

materially indistinguishable facts. Williams v. Tavlor. 529

U.S. 362. 405-06. 120 S. Ct. 1495. 146 L. Ed. 2d 389

(2000). An "unreasonable application" occurs when "a

state court decision unreasonably applies the law of [the

Supreme Court] to the facts of a prisoner's case." Id. at

409. A federal habeas court may not "issue the writ

simply because that court concludes in its independent

judgment that the relevant state-court decision applied

clearly established federal law erroneously or

incorrectly." Id. at 410-11. "[A] state court's

determination that a claim lacks merit precludes federal

habeas relief so long as 'fairminded jurists could

disagree' on the correctness of the state court's [*9]

decision." Harrington v. Richter. 562 U.S. 86. 101, 131

S. Ct. 770, 178 L. Ed. 2d 624 (201 Inciting Yarborough

V. Alvarado. 541 U.S. 652. 664. 124 S. Ct. 2140. 158 L

Ed. 2d 938 (2004)). Therefore, in order to obtain habeas

relief in federal court, a state prisoner is required to

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." Harrington.

562 U.S. at 103.

Petitioner's second and third claims were raised in her

post-conviction motion for relief from judgment. The

judge denied the motion because petitioner had failed to

establish cause and prejudice, as required by M.C.R.

6.508(D)(3) for failing to raise these claims on her

appeal of right. The judge, however, never addressed

the merits of the claims. (ECF No. 19-20, PagelD.

1971). The Michigan appellate courts denied petitioner's

post-conviction appeal in one-sentence orders without

*

Page 4 of 9

♦

2024 U.S. Dist. LEXIS 17931, *9

4?‘

adjudicating the merits of the claims.

When a state court fails to adjudicate a habeas

petitioner's claim on the merits, as was the case with

petitioner's second and third claims, a federal court is

required to review that claim de novo. See Cone v. Bell.

556 U.S. 449. 472. 129 S. Ct. 1769. 173 L. Ed. 2d 701

12009): See also McKenzie v. Smith. 326 F. 3d 721. 726

(6th Cir. 2003). With respect to petitioner's second and

third claims, "there are simply no results, let alone

reasoning, to which this court can defer. Without such

results [*10] or reasoning, any attempt to determine

whether the state court decision 'was contrary to, or

involved an unreasonable application of clearly

established Federal law,' 28 U.S.C. 6 2254(d)(1). would

be futile." McKenzie. 326 F. 3d at 127. Accordingly,

petitioner's second and third claims will be subject to de

novo review.

III. Discussion

A. Claim # 1. The evidentiary law claim.

Petitioner first contends that the trial court abused its

discretion by admitting into evidence the titles of the

websites her Kyocera cell phone accessed on the

morning of the murder. Petitioner argues that such

information was inadmissible hearsay,

unfairly

prejudicial, and violated her right to due process.

It is "not the province of a federal habeas court to

reexamine state-court determinations on state-court

questions." Estelle v. McGuire. 502 U.S. 62. 67-68. 112

S. Ct. 475. 116 L. Ed. 2d 385 (1991). A federal court is

limited in federal habeas review to deciding whether a

state court conviction violates the Constitution, laws, or

treaties of the United States. Id. Thus, errors in the

application of state law, especially rulings regarding the

admissibility of evidence, are usually not questioned by

a federal habeas court. Seymour v. Walker. 224 F. 3d

542. 552 (6th Cir. 2000).

The Michigan Court of Appeals determined that the titles

of the websites were not hearsay, because they were

not [*11] assertions in that the titles of the websites

were incapable of being true or false and nothing

indicated that petitioner accessed the websites "with the

intent of expressing a fact or opinion." People v. Duram.

2019 Mich. Add. LEXIS 1438. 2019 WL 1924935. at * 3

(internal citations omitted).

The admissibility of evidence under Michigan's hearsay

rules is not cognizable in a habeas corpus proceeding.

See Bvrd v. Tessmer. 82 F. Add'x 147. 150 (6th Cir.

2003): See also Rhea v. Jones, 622 F. Supp. 2d 562,

589 (W.D. Mich. 2008); Cathron v. Jones. 190 F. Sudd.

2d 990. 996 (E.D. Mich. 2002)(Detitioner's claim that

state court erred in admitting hearsay testimony under

state evidentiary rule governing declarations against

penal interest not cognizable in federal habeas review,

where the claim alleged a violation of state law, not a

violation of federal constitutional rights). This Court

cannot second guess the Michigan Court of Appeals'

decision that this evidence was not hearsay under

Michigan law.

Petitioner, however, also argues that this evidence was

more prejudicial than probative. Petitioner's claim that

he was denied a fair trial by the admission of irrelevant

and highly prejudicial evidence cannot form the basis for

habeas relief, because it involves a state law evidentiary

issue. See Hall v. Vasbinder, 551 F. Supp. 2d 652, 676

(E.D. Mich. 2008): rov'd on other grds 563 F.3d 222 (6th

Cir. 2009): See also Oliohant v. Koehler. 451 F. Sudd.

1305. 1308 (W.D. Mich. 1978).

Petitioner's claim that this evidence should have been

excluded under M.R.E. 403 for being more prejudicial

than [*12] probative does not entitle petitioner to

habeas relief. The Sixth Circuit observed that n[t]he

Supreme Court has never held (except perhaps within

the capital sentencing context) that a state trial court's

admission of relevant evidence, no matter how

prejudicial, amounted to a violation of due process."

Blackmon v. Booker. 696 F. 3d 536. 551 (6th Cir.

2012)temphasis original). The Michigan Court of

Appeals concluded that the cellphone evidence was

relevant and admissible to establish that petitioner

deliberately and with premeditation killed her husband,

in that "reasonable jurors could infer from the evidence

that defendant had accessed webpages related to the

murder weapon in contemplation of killing Martin."

People v. Duram. 2019 Mich. Add. LEXIS 1438. 2019

WL 1924935, at * 3. This Court must defer to that

determination.

In any event, appraisals of the probative and prejudicial

value of evidence are entrusted to the sound discretion

of a state trial court judge, and a federal court

considering a habeas petition must not disturb that

appraisal absent an error of constitutional dimensions.

See Dell v. Straub. 194 F. Sudd. 2d 629. 645 (E.D.

Mich. 2002). So long as a state court's determination

that evidence is more probative than prejudicial is

Page 5 of 9

■' t’

*

2024 U.S. Dist. LEXIS 17931, *12

reasonable, a federal court on habeas review will not

overturn a state court conviction. See Clark v. O'Dea.

257 F.3d 498. 503 (6th Cir. 2001).

The Michigan Court of 1*13] Appeals concluded that the

website evidence was probative as to the elements of

deliberation and premeditation required to sustain a

first-degree murder conviction. People v. Duram. 2019

Mich. Add. LEXIS 1438. 2019 WL 1924935. at * 4. The

Michigan Court of Appeals reasoned that "The

detective's testimony that the cell phone user accessed

the Ruger webpages over the course of more than an

hour could support a jury's inference that defendant

approached Martin's murder with deliberation and

premeditation." Id. The Michigan Court of Appeals

further concluded that the evidence was not more

prejudicial than probative in light of the substantial

additional evidence of premeditation and deliberation:

The Ruger found at the scene and linked to the

murder was a single-action revolver, which required

the shooter to cock the hammer each time before

pulling the trigger. Martin had been shot multiple

times, including twice through a pillow. This meant

that defendant had to position the pillow,

consciously and deliberately cock the hammer, fire,

and consciously and deliberately cock the hammer

again, then fire. Considering this additional, highly

probative evidence of defendant's state of mind and

deliberation, defendant's accessing Ruger websites

would not be given [*14] undue or preemptive

weight. Simply put, its significant probative value

was not substantially outweighed by the danger of

unfair prejudice. Therefore, the trial court did not err

in admitting the evidence.

Id.

The Michigan Court of Appeals' decision is reasonable,

precluding relief.

Petitioner also claims that the admission of this

evidence violated her right to due process.

Respondent argues that this portion of petitioner's claim

is procedurally defaulted because she did not object at

the trial level that the admission of this evidence violated

her right to due process. The Michigan Court of Appeals

concluded that this portion of petitioner's claim was

unpreserved because it was raised for the first time on

appeal and would thus be reviewed for plain error.

People v. Duram. 2019 Mich. Add. LEXIS 1438. 2019

WL 1924935. at * 4. ■

When the state courts clearly and expressly rely on a

valid state procedural bar, federal habeas review is also

barred unless petitioner can demonstrate "cause" for the

default and actual prejudice as a result of the alleged

constitutional violation, or can demonstrate that failure

to consider the claim will result in a "fundamental

miscarriage of justice." Coleman v. Thompson. 501 U.S.

722. 750-51. 111 S. Ct. 2546. 115 L. Ed. 2d 640 (1991).

If petitioner fails to show cause for his procedural

default, it is unnecessary [*15] for the court to reach the

prejudice issue. Smith v. Murray, 477 U.S. 527, 533.

106 S. Ct. 2661. 91 L. Ed. 2d 434 (19861. However, in

an extraordinary case, where a constitutional error has

probably resulted in the conviction of one who is actually

innocent, a federal court may consider the constitutional

claims presented even in the absence of a showing of

cause for procedural default. Murray v. Carrier. 477 U.S.

478. 479-80. 106 S. Ct. 2639. 91 L. Ed. 2d 397 (1986).

However, to be credible, such a claim of innocence

requires a petitioner to support the allegations of

constitutional error with new reliable evidence that was

not presented at trial. Schluo v. Delo. 513 U.S. 298.

324. 115 S. Ct. 851. 130 L. Ed. 2d 808 (1995).

The Sixth Circuit has ruled that "where a straightforward

analysis of settled state procedural default law is

possible, federal courts cannot justify bypassing the

procedural default issue." Sheffield v. Burt, 731 F. Aoo'x

438. 441 (6th Cir. 2018).

Although petitioner objected to the admission of this

evidence at trial, she did not argue that the admission of

this evidence violated her right to due process, but

merely that it was inadmissible under the Michigan

Rules of Evidence.

Michigan law requires defendants in criminal cases to

present their claims in the trial courts in order to

preserve them for appellate review. See People v.

Cannes. 460 Mich. 750. 761-64: 597 N.W.2d 130

(1999). Under Michigan law, "To preserve an evidentiary

issue for review, a party opposing the admission of

evidence must object at [*16] trial and specify the same

ground for objection that it asserts on appeal." People v.

Thorpe. 504 Mich. 230. 252. 934 N.W.2d 693 (2019). By

failing to object to the admission of this evidence on the

ground that it violated her due process rights, petitioner

failed to properly preserve this portion of her first claim

for appellate review. The fact that the Michigan Court of

Appeals engaged in plain error review of petitioner's due

process subclaim does not constitute a waiver of the

state procedural default. Seymour v. Walker. 224 F. 3d

542. 557 (6th Cir. 2000). Instead, this court should view

• £

Page 6 of 9

2024 U.S. Dist. LEXIS 17931, *16

the Michigan Court of Appeals' review of the claim for

plain error as enforcement of the procedural default.

Hinkle v. Randle, 271 F. 3d 239. 244 (6th Cir. 2001).

Petitioner offered no reasons for her failure to properly

preserve her due process claim at the trial level.

Petitioner did not raise a claim of ineffective assistance

of counsel, or any other reason, to excuse the

procedural default. By failing to raise any claim or issue

to excuse the procedural default, petitioner "has

forfeited the question of cause and prejudice." Rogers v.

Skipper. 821 F. Add'x 500. 503 (6th Cir. 2020).

Finally, petitioner has not presented any new reliable

evidence to support any assertion of innocence which

would allow this Court to consider her defaulted claim as

a ground for a writ of habeas corpus despite the

procedural default. [*17] Petitioner is not entitled to

relief on her first claim.

B. Claims # 2 and # 3. The ineffective assistance of

counsel claims.

Petitioner in her secbnd and third claims alleges she

was denied the effective assistance of trial and

appellate counsel.

Respondent argues that these claims are procedurally

defaulted because petitioner raised them for the first

time in her post-conviction motion for relief from

judgment and failed to show cause and prejudice, as

required by M.C.R. 6.508(D)(3). for not raising these

claims on her appeal of right.

Petitioner was represented on her appeal of right by the

same two attorneys, who represented her at trial.

Petitioner would most likely be excused from raising her

ineffective assistance of trial counsel claim on her

appeal of right because the same two attorneys served

as her trial and appellate counsel. See Hicks v. Collins.

384 F. 3d 204. 211 (6th Cir. 2004): See also Harding v.

Bock. 107 F. App'x 471. 478 (6th Cir. 2004). Petitioner

could not have procedurally defaulted her ineffective

assistance of appellate counsel claim, because state

post-conviction review was the first opportunity that she

had to raise this claim. Guilmette v. Howes. 624 F. 3d

286. 291 (6th Cir. 2010).

A defendant must satisfy a two prong test to establish

the denial of the effective assistance of counsel. First,

the defendant must show that, considering [*18] all of

the circumstances, counsel's performance was so

deficient that the attorney was not functioning as the

"counsel" guaranteed by the Sixth Amendment.

Strickland v. Washington. 466 U.S. 668. 687. 104 S. Ct.

2052. 80 L. Ed. 2d 674 (1984). The defendant must

overcome a strong presumption that counsel's behavior

lies within the wide range of reasonable professional

assistance. Id. In other words, the defendant must

overcome

the

presumption

that,

under

the

circumstances, the challenged action might be sound

trial strategy. Strickland. 466 U.S. at 689. Second, the

defendant must show that such performance prejudiced

his defense. Id. To demonstrate prejudice, the

defendant must show that "there is a reasonable

probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different."

Strickland. 466 U.S. at 694. The Strickland standard

applies as well to claims of ineffective assistance of

appellate counsel. See Whiting v. Burt. 395 F. 3d 602.

617 (6th Cir. 2005).

Petitioner first argues that trial counsel were ineffective

for failing to file pre-trial motions. Counsel did, in fact,

make an oral motion to objecting to the prosecutor's

intent to admit the webpage cellphone evidence, which

was denied. (ECF No. 19-14, PagelD. 1753-74).

Petitioner, however, fails to identify what additional pre­

trial motions should have been filed and for what

purpose, nor has [*19] she offered any argument on

how the outcome of the case would have been different

had counsel filed additional pre-trial motions. Petitioner

has not identified any additional specific pretrial motions

that her counsel should have filed that reasonably would

have resulted in a different verdict and thus has failed to

show that they were ineffective. See Austin v. Beil. 126

F.3d 843. 848 (6th Cir. 1997).

Petitioner next claims that trial counsel was ineffective

for failing to call defense witnesses, particularly expert

witnesses to rebut the testimony of the prosecution

witnesses.

Petitioner is not entitled to relief on her claim because

she failed to provide to the Michigan courts or this Court

an affidavit from any proposed witnesses concerning

their proposed testimony and willingness to testify on

petitioner's behalf. Conclusory allegations of ineffective

assistance of counsel, without any evidentiary support,

do not provide a basis for habeas relief. See Workman

v. Bell. 178 F.3d 759. 771 (6th Cir. 19981 In particular, a

habeas petitioner's claim that trial counsel was

ineffective for failing to call an expert witness cannot be

based on speculation. See Keith v. Mitchell. 455 F. 3d

662. 672 (6th Cir. 2006). Petitioner offered, neither to

; $>

e-

Page 7 of 9

2024 U.S. Dist. LEXIS 17931, *19

the Michigan courts nor to this Court, any evidence

beyond her own assertions as to whether there [*20]

were witnesses who would have testified and what the

content of their testimony would have been. In the

absence of such proof, petitioner is unable to establish

that she was prejudiced by counsel's failure to call the

witnesses to testify at trial, so as to support the second

prong of an ineffective assistance of counsel claim. See

Clark v. Waller. 490 F: 3d 551. 557 (6th Cir. 2007).

Moreover, with respect to her claim that trial counsel

was ineffective for failing to call expert witnesses for the

defense, the Supreme Court has noted that a counsel's

strategic decision as to whether to hire an expert is

entitled to a "'strong presumption' of reasonableness."

Dunn v. Reeves. 594 U.S. 731, 141 S. Ct. 2405. 2410.

210 L Ed. 2d 812 (2021). "Strickland does not enact

Newton's third law for the presentation of evidence,

requiring for every prosecution expert an equal and

opposite expert from the defense." Harrington v. Richter.

562 U.S. at111.

Although counsel did not hire any expert witnesses,

counsel did vigorously cross-examine the various

prosecution witnesses on a number of subjects.

At trial, the prosecution presented six expert witnesses:

(1) David Hayhurst, forensic DNA analysis and

bloodstain splatter expert; (2) Sarah Rambadt, forensic

DNA analysis expert; (3) Detective-Sergeant Jason

Sinke, fingerprint analysis expert; (4) Lieutenant Jeff

Crump, 1*21] ballistics expert; (5) Detective-Lieutenant

Mark Goff, handwriting identification expert; and (6) Dr.

Brian Hunter, forensic pathology expert. The

prosecution also presented testimony from two medical

providers, Dr. Hayden Boyce and a physician's

assistant, Roman Grant.

Defense counsel questioned Dr. Hunter about whether

he was able to determine when the gunshot injuries had

occurred. (ECF No. 19-10, PagelD. 1065-67). Counsel's

questions and Dr. Hunter's answers left an undefined

period of time between the shooting and when Martin

Duram's body was discovered, raising the question of

whether petitioner shot him or whether another person

was the actual shooter.

With respect to the testimony of Dr. Boyce, counsel

elicited testimony that there was no evidence of gunshot

residue which would demonstrate close contact

gunshots. But in order for petitioner to have shot herself,

the firearm would have had to touch the back of her

head. Thus, in effect, counsel obtained testimony that

the lack of deposit of gunpowder residue was

inconsistent with close contact of the firearm with

petitioner's head. Counsel also questioned Dr. Boyce on

whether petitioner was unconscious after she shot

herself, [*22] or whether she could have moved around.

Dr. Boyce testified that it was impossible to know what

happened after petitioner was shot. (ECF No. 19-13,

PagelD. 1485-87).

Defense counsel cross-examined Detective Goff.

Counsel obtained admissions from Detective Goff that

he did not examine the letters to determine when they

were written and he admitted that the letters were not

dated. Detective Goff acknowledged he did not know

when petitioner wrote these letters. (ECF No. 19-13,

PagelD. 1647).

Counsel elicited favorable testimony from Detective

Sinke that petitioner's fingerprints were not recovered

from the .22 caliber Ruger. Detective Sinke admitted

that petitioner's fingerprints were not found on either of

the two cell phones recovered at the crime scene. (ECF

No. 19-12, PagelD. 1302-04).

Defense counsel questioned Mr. Hayhurst on his DNA

sampling and testing procedures. Counsel elicited

testimony from Mr. Hayhurst that there was no definitive

mechanism he could use to determine how blood

splatter occurred. (ECF No. 19-12, PagelD. 1361-62).

Counsel also obtained an admission from Mr. Hayhurst

that a number of blood stains were found on a laundry

basket at petitioner's house, but only one [*23] stain

was tested. (Id., PagelD. 1352-54). Mr. Hayhurst also

testified that there was no blood found on the firearm

and no blood splatter. (Id., PagelD. 1358-59). Mr.

Hayhurst conceded that because petitioner's body was

moved, he was unable to determine what bloodstains on

her clothing occurred at the scene and what occurred

after. (Id., PagelD. 1361).

Counsel questioned the DNA expert, Ms. Rambadt,

about whether petitioner was excluded as being the

major DNA profile on the gun and cartridges. (ECF No.

19-12, PagelD. 1433-1448). Ms. Rambadt noted that

the DNA of three or more individuals, including a major

male contributor, was recovered from the Ruger

handgun. (Id., PagelD. 1438-39). Rambadt identified

petitioner as a possible contributor to the DNA on the

handgun but could not provide a definitive identity

statement.

(Id.,

PagelD.

1439-40).

Rambadt

acknowledged that there was a second, unknown major

contributor, also unidentified. (Id., PagelD. 1441-43).

Finally, Rambadt tested a DNA sample swab from

cartridges recovered from the crime scene and

Page 8 of 9

2024 U.S. Dist. LEXIS 17931, *23

concluded that the DNA was consistent with a mixture of

at least two individuals: a major male contributor and a

major unknown donor. Rambadt [*24] acknowledged

that petitioner was excluded as the major unknown

donor. {Id., PagelD. 1445-48).

As to Mr. Crump, the ballistics expert, on crossexamination, he admitted that he could not tell that the

bullets recovered at the crime scene came from the

same Ruger firearm. Instead, he testified that he could

identify 75 other firearm manufacturers with similar

markings. (ECF No. 19-11, PagelD. 1172).

"In many instances cross-examination will be sufficient

to expose defects in an expert's presentation."

Harrington v. Richter. 562 U.S. at 111. A defense

counsel's decision to cross-examine a prosecutor's

experts concerning their findings, instead of calling an

expert witness for the defense to challenge that expert's

conclusions, has at times been held to be a reasonable

trial strategy that defeats a habeas petitioner's

ineffective assistance of trial counsel claim. See Tinslev

v. Million. 399 F.3d 796. 806 (6th Cir. 2005): See also

Jackson v. McQuiogin. 553 F. Aoo'x 575. 580-82 (6th

Cir. 2014). Counsel's decision to cross-examine the

prosecution's various experts, in lieu of calling an

expert, is a reasonable one that defeats petitioner's

claim.

Petitioner finally argues that trial counsel was ineffective

when counsel failed to strike two bias jurors from the

jury. Petitioner claims that these two jurors were

because they were "against guns” [*25] and "open

carry."

One of the most essential responsibilities of a defense

attorney is "to protect his client's constitutional right to a

fair and impartial jury by using voir dire to ferret out

jurors who are biased against the defense." Miller v.

Francis. 269 F. 3d 609. 615 (6th Cir. 2001). However, a

defense counsel's actions during voir dire are presumed

to be matters of trial strategy and cannot serve as the

basis of an ineffective assistance of counsel claim

unless "counsel's decision is shown to be so ill-chosen

that it permeates the entire trial with unfairness." Id. at

615-16.

Petitioner is not entitled to relief on her claim because

she has not shown that any jurors during voir dire

indicated that they were against guns or open carry

laws. The Court reviewed the entire portion of the voir

dire and there is no indication any juror made these

statements. (ECF No. 19-7, PagelD. 599-755).

To maintain a claim that a biased juror prejudiced him,

for purposes of maintaining an ineffective assistance of

counsel claim, a habeas petitioner must show that the

juror was actually biased against him. See Hughes v.

United States. 258 F. 3d 453. 458 (6th Cir. 2001): See

also Miller v. Francis. 269 F. 3d at 616 (when a claim of

ineffective assistance of counsel is founded on a claim

that counsel failed to strike a biased juror, the defendant

must show [*26] that the juror was actually biased

against him). Petitioner failed to make this showing; she

is not entitled to relief on this claim.

Petitioner in her third claim alleges the ineffective

assistance of appellate counsel.

Petitioner initially claims that she was denied the

effective assistance of appellate counsel, in part,

because her trial counsel continued to serve as her

attorneys on appeal. The Sixth Circuit has held that a

court should not use the presumed prejudice standard

set forth in Cuvier v. Sullivan. 446 U.S. 335, 100 S. Ct.

1708, 64 L Ed. 2d 333 (1980) in evaluating a claim of

an alleged conflict of interest arising from a counsel's

successive representation of a defendant at trial and on

his or her direct appeal. See Whiting v. Burt. 395 F. 3d

at 619. Instead, a court must apply the Strickland

standard to determine whether a defendant was actually

prejudiced by appellate counsel's ineffectiveness, even

where that appellate counsel was also the defendant's

trial counsel. Id.

The Sixth Amendment guarantees a defendant the right

to effective assistance of counsel on the first appeal by

right. Evitts v. Lucev. 469 U.S. 387. 396-397. 105 S. Ct.

830, 83 L. Ed. 2d 821 (1985). However, court appointed

counsel does not have a constitutional duty to raise

every non-frivolous issue requested by a defendant.

Jones v. Barnes. 463 U.S. 745. 751. 103 S. Ct. 3308. 77

L. Ed. 2d 987 (1983).

Petitioner was not denied the effective assistance of trial

counsel. "[Ajppellate [*27] counsel cannot be found to

be ineffective for 'failure to raise an issue that lacks

merit."’ Shanebemer v. Jones. 615 F.3d 448. 452 (6th

Cjn_2010),{quoting Greer v. Mitchell. 264 F.3d 663. 676

(6th Cir. 2001)). Because petitioner was not denied the

effective assistance of trial counsel, appellate counsel

was not ineffective in failing to raise this claim on

petitioner's appeal of right. See, e.g., Fautenberrv v.

Mitchell. 515 F.3d 614. 642 (6th Cir. 2008). Petitioner is

not entitled to relief on her third claim.

r •*»*> j

%

Page 9 of 9

*■

*»■

2024 U.S. Dist. LEXIS 17931, *27

IV. Conclusion

/si Sean F. Cox

The Court will deny, the petition for writ of habeas

corpus. The Court will also deny a certificate of

appealability to petitioner. In order to obtain a certificate

of appealability, a prisoner must make a substantial

showing of the denial of a constitutional right. 28 U.S.C.

$ 2253(c)(2). To demonstrate this denial, the applicant

is required to show that reasonable jurists could debate

whether, or agree that, the petition should have been

resolved in a different manner, or that the issues

presented were adequate to deserve encouragement to

proceed further. Slack v. McDaniel. 529 U.S. 473. 48384. 120 S. Ct. 1595. 146 L. Ed. 2d 542 (2000). When a

district court rejects a habeas petitioner's constitutional

claims on the merits, the petitioner must demonstrate

that reasonable jurists would find the district court's

assessment of the constitutional claims to be debatable

or wrong. Id. at 484. Likewise, when a district court

denies a habeas [*28] petition on procedural grounds

without reaching the prisoner's underlying constitutional

claims, a certificate of appealability should issue, and an

appeal of the district court's order may be taken, if the

petitioner shows that jurists of reason would find it

debatable whether the petitioner states a valid claim of

the denial of a constitutional right, and that jurists of

reason would find it debatable whether the district court

was correct in its procedural ruling. Id. at 484. "The

district court must issue or deny a certificate of

appealability when it enters a final order adverse to the

applicant." Rules Governing 8 2254 Cases. Rule 11(a).

28 U.S.C. foil. § 2254.

Sean F. Cox [*29]

The Court will deny petitioner a certificate of

appealability because he failed to make a substantial

showing of the denial of a federal constitutional right.

See also Millender v. Adams. 187 F. Sudd. 2d 852. 880

(E.D. Mich. 2002). The Court further concludes that

petitioner should not be granted leave to proceed in

forma pauperis on appeal, as any appeal would be

frivolous. See Fed.R.App. P. 24(a).

V. ORDER

Based upon the foregoing, IT IS ORDERED that:

(1) The petition for a writ of habeas corpus is

DENIED WITH PREJUDICE.

(2) A certificate of appealability is DENIED.

Petitioner will be DENIED leave to appeal in forma

pauperis.

Dated: February 1,2024

U. S. District Judge

JUDGMENT

The above entitled matter having come before the

Court on a Petition for Writ of Habeas Corpus, and

in accordance with the Memorandum Opinion and

Order issued this date.

The Petition for Writ of Habeas Corpus is DENIED

WITH PREJUDICE.

(2) A Certificate of Appealability is DENIED.

(3) Petitioner is DENIED leave to appeal in forma

pauperis.

Dated: February 1, 2024

Is/ Sean F. Cox

Sean F. Cox

U: S. District Judge

End of Document