Petition for Writ of Certiorari — Mario Ray Childs, Petitioner v. Jeff Tanner, Warden

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No. 24IN THE

SUPREME COURT OF THE UNITED STATES

IN RE:

MARIO RAY CHILDS,

Petitioner,

V

JEFF TANNER, Warden

Respondent.

PETITION APPENDIX INDEX

APPENDIX A1-A8

Childs v Tanner, 2024 U.S. App. LEXIS 16217 - July 2.

2024 ;# 24-1185

APPENDIX B1-B22

Childs v Tanner, 2024 U.S. Dist. LEXIS 17109; 2024 WL

386836 - January 31. 2024; # 23-cv 10864

APPENDIX Cl

People v Childs, 510 Mich. 1065, 981 N.W.2d 474, 2022

Mich. LEXIS 2031 - November 30, 2022, Mich. Sup. Ct., No.

164359

APPENDIX D1-D6

People v Watkins, 2022 Mich. App. LEXIS 1229

Mich. Ct. App., No. 354401, March 10, 2022

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APPENDIX A1-A8

Childs v Tanner, 2024 U.S. App. LEXIS 16217

Order and Judgment of the United States Court of Appeals

for the Sixth Circuit

Judges•' Karen Nelson Moore, Circuit Judge

COAApplication DENIED

Motion for Pauper Status DENIED as moot

(July 2, 2024 ; # 24-1185)

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FILED

No. 24-1185

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARIO RAY CHILDS,

Petitioner-Appellant,

v.

JEFF TANNER, Warden,

Respondent-Appellee.

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Jul 2, 2024

KELLY L. STEPHENS, Clerk

ORDER

Before: MOORE, Circuit Judge.

Mario Ray Childs, a pro se Michigan prisoner, appeals the district court’s judgment

denying his petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254. This court construes

Childs’s notice of appeal as an application for a certificate of appealability (COA). See Fed. R.

App. P. 22(b)(1). Childs moves to proceed in forma pauperis. See Fed. R. App. P. 24(a)(5). For

the reasons set forth below, Childs is not entitled to a COA.

On March 3, 2019, Childs stabbed and killed his next-door neighbor, Cedric Swamgan, m

the hallway of their adult foster home. Earlier in the day, Childs had given Swanigan money to

buy alcohol and cigarettes. When Swanigan failed to give him his change from the purchases,

Childs confronted Swanigan, who denied having the money. The two men argued, and later, when

no other tenants were present, Childs stabbed Swanigan with a steak knife that had been on

Childs’s dresser. Childs admitted that he stabbed Swanigan but claimed that he had done so m

self-defense rather than as the initial aggressor. He testified at trial that Swanigan had grabbed the

knife off the dresser and tried to stab him, at which point Childs twisted Swanigan’s wrist and

turned the knife blade toward Swanigan, causing the blade to go into Swanigan’s abdomen. The

jury ultimately rejected Childs’s self-defense argument and convicted him of second-degree

No. 24-1185

-2-

murder. The trial court sentenced him as a fourth-offense habitual offender to 40 to 70 years in

prison.

On direct appeal, Childs raised several claims, including that the prosecutor committed

misconduct, the trial court inadequately instructed the jury on self-defense, and trial counsel was

ineffective. The Michigan Court of Appeals reviewed Childs’s prosecutorial-misconduct claims

for plain error, deemed his instructional-error claim waived, determined that both those claims and

his related ineffectiveness claims lacked merit, and affirmed. People v. Childs, No. 354401, 2022

WL 726786 (Mich. Ct. App. Mar. 10, 2022) (per curiam), perm. app. denied, 981 N.W.2d 474

(Mich. 2022).

In April 2023, Childs filed this § 2254 petition, reasserting the prosecutorial-misconduct,

instructional-error, and ineffective-assistance claims raised in his direct appeal. Bypassing any

procedural-default analysis, see 28 U.S.C. § 2254(b)(2), the district court denied the claims on the

merits and declined to issue a COA. This appeal followed.

A COA may be issued “only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, the applicant must

demonstrate that “jurists of reason could disagree with the district court s resolution of his

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

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

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), when a state court adjudicates

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

adjudication resulted in a decision that was (1) “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court, or (2) was

based on an unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d); see Harrington v. Richter, 562 U.S. 86, 100 (2011). A

state appellate court’s plain-error ruling is entitled to AEDPA deference.

See Stewart v.

Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017).

Childs raised several claims of prosecutorial misconduct, as well as corresponding claims

that trial counsel was ineffective for failing to object. When reviewing a prosecutorial-misconduct

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No. 24-1185

-3claim in a federal habeas proceeding, “[t]he relevant question is whether the prosecutors’ [actions]

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

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

637, 643 (1974))- To establish ineffective assistance of counsel, a defendant must show that his

attorney’s performance was deficient and that he was prejudiced as a result.

Strickland v.

Washington, 466 U.S. 668, 687 (1984). The performance inquiry requires a defendant to “show

that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688.

Counsel is “strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id. at 690. The test for prejudice

is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 694.

Childs first claimed that the prosecutor committed misconduct by referring to facts not in

evidence during her closing argument—i.e., that Swanigan had “defensive wounds” on his hands.

The Michigan Court of Appeals rejected this claim, concluding that, “[ajlthough there was no

direct evidence that Swanigan received the abrasions on his hands while trying to defend himself,

the prosecutor’s argument was not improper because “the evidence supported a reasonable

inference that the abrasions were caused by Swanigan’s hands coming into contact with the

serrated blade of the knife.” Childs, 2022 WL 726786, at * 1. The court noted that “[t]he inference

from the evidence that the abrasions were ‘defensive wounds’ relate[d] to the prosecutor’s theory

that Childs was the person who possessed the knife, and, therefore, was not acting m self-defense

when he stabbed Swanigan.” Id. Given that “prosecutors ‘must be given leeway to argue

reasonable inferences from the evidence,”’ Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000)

(quoting United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996)), and that the trial court

instructed the jury that the attorneys’ arguments were not evidence, see Greer v. Miller, 483 U.S.

756, 766 (1987) (stating that jurors are generally presumed to follow instructions), reasonable

jurists could not debate the district court’s rejection of this claim. And because any objection to

the prosecutor’s disputed statement likely would have been futile, reasonable jurists would not

debate the district court’s determination that trial counsel was not ineffective for failing to raise

No. 24-1185

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such an objection. See Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013) (“Omitting meritless

arguments is neither professionally unreasonable nor prejudicial.”).

Childs next claimed that the prosecutor committed misconduct by introducing into

evidence a video recording of him in the backseat of a police cruiser making several unsolicited

inculpatory comments after his arrest, including referring to himself as “a true killer.” The

Michigan Court of Appeals disagreed, concluding that this evidence was properly admitted under

state law. Childs, 2022 WL 726786, at *2-3. Because “[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), reasonable jurists could not debate the district

court’s rejection of this prosecutorial-misconduct claim. Similarly, in light of the state courts’

determination that the video evidence was admissible, reasonable jurists could not debate the

district court’s rejection of Childs’s related claim that counsel was ineffective for failing to object

to its admission. See Coley, 706 F.3d at 752; see also Davis v. Straub, 430 F.3d 281, 291 (6th Cir.

2005) (“Because we cannot logically grant [a writ of habeas corpus] based on ineffective assistance

of counsel without determining that the state court erred in its interpretation of its own law, we are

constrained to uphold the district court’s denial of the writ.”). To the extent that Childs argued

that the trial court’s evidentiary ruling was incorrect, his claim does not deserve encouragement to

proceed further because perceived errors of state law do not provide a basis for federal habeas

relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). To warrant relief, Childs would have

to show that the challenged evidentiary ruling was so egregious that it rendered his trial

fundamentally unfair and deprived him of due process. McAdoo v. Elo, 365 F.3d 487, 494 (6th

Cir. 2004) (citing Estelle, 502 U.S. at 69-70). Childs failed to make such a showing.

Childs also claimed that trial counsel was ineffective for conceding during her closing

argument that he did not inform the police that he had acted in self-defense until hours after his

arrest when the video recording from the police cmiser shows that he did so almost immediately.

In rejecting this claim, the Michigan Court of Appeals noted that many of Childs’s remarks in the

police cruiser were “damaging” to his self-defense theory and “not as supportive as Childs asserts.

Childs, 2022 WL 726786, at *3. The court thus determined that counsel “made a strategic decision

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No. 24-1185

-5to attempt to distance Childs from responsibility for any of [those] remarks,” specifically by

arguing that Childs was under the influence of drugs when he made them and that he was “not on

trial for saying awful things.” Id. The court further reasoned that counsel’s decision to focus on

Child’s later police statement, rather than the recording from the police cruiser, “was objectively

reasonable because that is when Childs ‘came forward’ and talked to the police,” whereas Childs’s

unprompted comments in the cruiser were seemingly made to himself and, therefore, could not

fairly be described as him “coming forward.” Id. The district court agreed, adding that counsel is

afforded “wide latitude” in making closing argument and that judicial review is therefore highly

deferential. Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam). Given this deference,

reasonable jurists would not debate the district court’s conclusion that the state appellate court s

rejection of this ineffective-assistance claim was not contrary to or an unreasonable application of

Strickland.

Childs next claimed that the prosecutor committed misconduct by asking him on crossexamination whether he had “any prior felony convictions involving theft or dishonesty in the last

ten years.” Childs asserted that the prosecutor asked this question in “bad faith” because he did

not have any such convictions in the preceding ten years and she neither gave notice of her intent

to use any prior convictions for impeachment purposes nor sought a ruling from the trial court that

such evidence was admissible under Michigan Rule of Evidence 609. The record reflects that

defense counsel immediately objected to the prosecutor’s inquiry and that the prosecutor

subsequently withdrew her question after a bench conference. The district court rejected this

claim, agreeing with the Michigan Court of Appeals that the prosecutor’s question did not deprive

Childs of a fair trial because Childs did not answer the disputed question and, therefore, no

improper prior conviction had been admitted into evidence. Childs, 2022 WL 726786, at *4.

Although Childs faulted counsel for objecting to the prosecutor’s question, rather than allowing

him to answer her question in the negative, the Michigan Court of Appeals reasoned that counsel’s

course of action “was not objectively unreasonable” under the circumstances. Id. Reasonable

jurists could not debate the district court’s conclusion that the state appellate court’s rejection of

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No. 24-1185

-6this prosecutorial-misconduct claim and the corresponding ineffective-assistance claim neither

contravened nor unreasonably applied clearly established federal law.

Childs further claimed that the cumulative effect of the prosecutor’s and trial counsel’s

errors denied him the constitutional right to a fundamentally fair trial.

Because claims of

cumulative error are not cognizable on federal habeas review, see Hill v. Mitchell, 842 F.3d 910,

948 (6th Cir. 2016), this claim does not deserve encouragement to proceed further.

Lastly, Childs claimed that the trial court’s jury instructions on self-defense were

inadequate or incomplete and that counsel was ineffective for failing to object to the allegedly

deficient instructions. To that end, Childs argued that the trial court should have instructed the

jury that (1) a person is not required to retreat before using deadly force in self-defense if he is

attacked in his own home, see M. Crim. JI 7.16(2), and (2) there is a rebuttable presumption that

the defendant was in fear of death or great bodily harm if the deceased was in the process of

committing a home invasion or break-in at the time that the defendant employed deadly force, and

“the defendant honestly and reasonably believed the deceased was engaged in” such conduct, see

M. Crim. JI 7.16a(l). The Michigan Court of Appeals concluded that Childs was not entitled to

the no-retreat instruction because Childs repeatedly testified that Swanigan had attacked him in

the hallway of their foster home, not in his bedroom, so “there was no factual dispute regarding

whether Childs had a duty to retreat.” Childs, 2022 WL 726786, at *5. The state appellate court

determined that Childs was not entitled to the rebuttable-presumption instruction because

“Swanigan, as a tenant of the adult foster home, also had the legal right to be in the hallway” where

the attack occurred. Id. at *5-6 (citing M. Crim. JI 7.16a(2)(a) (providing that the presumption

that the defendant was in fear of death or great bodily harm “does not apply if.. . the deceased

had the legal right to be in the dwelling”)). As previously mentioned, a state court’s interpretation

of a state-law issue generally cannot be challenged on federal habeas review. See Estelle, 502 U.S.

at 71-72. Moreover, Childs did not establish that the alleged instructional errors so infected the

entire trial that the resulting conviction violated due process. See id. at 72. And because the

Michigan Court of Appeals found no state-law error in the jury instructions, trial counsel was not

ineffective for failing to object to the instructions. See Coley, 706 F.3d at 752. Reasonable jurists

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No. 24-1185

-7could not debate the district court’s denial of Childs’s instructional-error and related ineffectiveassistance claims.

For these reasons, Childs’s COA application is DENIED and his motion for pauper status

is DENIED as moot.

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ENTERED BY ORDER OF THE COURT

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Jul 2, 2024

KELLY L. STEPHENS, Clerk

No. 24-1185

MARIO RAY CHILDS,

Petitioner-Appellant,

v.

JEFF TANNER, Warden,

Respondent-Appellee.

Before: MOORE, Circuit Judge.

JUDGMENT

THIS MATTER came before the court upon the application by Mario Ray Childs 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

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APPENDIX B1 - B22

Childs v Tanner, 2024 U.S. Dist. LEXIS 17109; 2024 WL 386836

Opinion and Order of the U.S. Dist. Ct. - E.D. Mich.

Hon. George Caram Steeh, United States District Judge

DENYING the Petition for Writ of Habeas Corpus with Prejudice and

DECLINING to Issue a Certificate of Appealability and

DENYING Leave to Appeal In Forma Pauperis

(January 31. 2024; # 23-cv 10864)

Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1307 Filed 01/31/24 Page 1 of 22

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARIO RAY CHILDS,

Petitioner,

Case No. 23-cv-10864

v.

Hon. George Caram Steeh

JEFF TANNER, 1

Respondent.

OPINION AND ORDER DENYING THE PETITION FOR

A WRIT OF HABEAS CORPUS. DECLINING TO ISSUE

A CERTIFICATE OF APPEALABILITY. AND DENYING

LEAVE TO APPEAL IN FORMA PAUPERIS

Mario Ray Childs, (“Petitioner”), incarcerated at the Macomb County

Correctional Facility in New Haven, Michigan, filed a pro se habeas corpus

petition pursuant to 28 U.S.C. § 2254, challenging his state conviction for

second-degree murder, Mich. Comp. Laws § 750.317. Petitioner was

sentenced to forty to seventy years in prison. Petitioner raises a

prosecutorial misconduct claim, an instructional error claim, and several

ineffective assistance of trial counsel claims. The State argues in an

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The Court orders that the caption in this case be amended to reflect that the proper

respondent in this case is now Jeff Tanner, the warden of the prison where petitioner is

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

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

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1308 Filed 01/31/24 Page 2 of 22

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answer to the petition that the claims are procedurally defaulted and/or

without merit. For the reasons stated below, the petition for a writ of habeas

corpus is DENIED.

I. Background

Petitioner was convicted following a jury trial in the Wayne County

Circuit Court. This Court recites verbatim the relevant facts relied upon by

the Michigan Court of Appeals, which are presumed correct on habeas

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

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

Childs’s convictions arise from the fatal stabbing of Cedric

Swanigan in their adult foster home in Detroit on March 3,

2019. Earlier in the day, Childs gave Swanigan money to

purchase alcohol and cigarettes. Believing that Swanigan failed

to give him the $30 in change from the purchases, Childs

confronted Swanigan, who denied having the money. The two

men argued, and, eventually, while no other tenants were

present, Swanigan was stabbed with a knife that had been on

Childs’s dresser. The prosecution’s theory was that Childs was

the aggressor, possessed the knife, and stabbed Swanigan

because he was angry. At trial, and in a statement that he gave

to the police, Childs stated that he acted in self-defense. He

explained that Swanigan grabbed the knife off the dresser and

tried to stab him. Childs stated that he was in fear for his life, so

he twisted Swanigan’s wrist and turned the knife blade toward

Swanigan, which caused the blade to go into Swanigan’s

abdomen. The jury rejected the self-defense claim and

convicted Childs of second-degree murder.

People v. Childs, No. 354401,2022 WL 726786, at *1 (Mich. Ct. App.

Mar. 10, 2022), Iv. den. 981 N.W.2d 474 (Mich. 2022).

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1309 Filed 01/31/24 Page 3 of 22

II. Standard of Review

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

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

review for habeas cases:

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

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

be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court

proceeding.

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

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

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

differently than the Supreme Court has on a set of materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

An “unreasonable application” occurs when “a state court decision

unreasonably applies the law of [the Supreme Court] to the facts of a

prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1310 Filed 01/31/24 Page 4 of 22

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.

The Michigan Court of Appeals rejected petitioner’s prosecutorial

misconduct and instructional error claims under a plain error standard

because the issues were unpreserved. The AEDPA deference applies to

any underlying plain-error analysis of a procedurally defaulted claim. See

Stewart v. Trierweiler, 867 F.3d 633, 638(6th Cir. 2017).2

III. Discussion

A. The prosecutorial misconduct/ineffective assistance of

counsel claims.

Petitioner alleges prosecutorial misconduct and that counsel was

ineffective for failing to object.

“Claims of prosecutorial misconduct are reviewed deferentially on

habeas review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir.

2004)(citing Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A

Respondent argues that these claims are procedurally defaulted because petitioner

failed to preserve the issues at the trial court level. Petitioner argues that counsel was

ineffective for failing to object. Ineffective assistance of counsel may establish cause for

procedural default. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). Given that the

cause and prejudice inquiry for the procedural default issue merges with an analysis of

the merits of petitioner’s defaulted claims, it would be easier to consider the merits of

these claims. See Cameron v. Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich. 2004).

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1311 Filed 01/31/24 Page 5 of 22

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prosecutor’s improper comments will be held to violate a criminal

defendant’s constitutional rights only if they ‘“so infected the trial with

unfairness as to make the resulting conviction a denial of due process.’”

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

DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will

thus form the basis for habeas relief only if the conduct was so egregious

as to render the entire trial fundamentally unfair based on the totality of the

circumstances. Donnelly v. DeChristoforo, 416 U.S. at 643-45. To obtain

habeas relief on a prosecutorial misconduct claim, a habeas petitioner must

show that the state court’s rejection of his prosecutorial misconduct claim

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

comprehended in existing law beyond any possibility for fairminded

disagreement.” Parker v. Matthews, 561 U.S. 37, 48 (2012)(internal

quotation omitted).

To prevail on his ineffective assistance of counsel claims, petitioner

must show that the state court’s conclusion regarding these claims was

contrary to, or an unreasonable application of, Strickland v. Washington,

466 U.S. 668 (1984). See Knowles v. Mirzayance, 556 U.S. 111, 123

(2009). Strickland established a two-prong test for claims of ineffective

assistance of counsel: the petitioner must show (1) that counsel’s

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1312 Filed 01/31/24 Page 6 of 22

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performance was deficient, and (2) that the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687.3

Petitioner contends that the prosecutor injected facts that had not

been introduced into evidence by stating during her closing argument that

the small cuts and scrapes that were seen on Swanigan’s hands in the

photographs were “defensive wounds.” Petitioner argues that these

remarks were misleading because there was no evidence that the knife

caused those wounds and the medical examiner never testified that the

victim had any wounds on his hands.

In rejecting the claim, the Michigan Court of Appeals indicated that

the photographs of Swanigan’s hands, which were admitted at trial, showed

small cuts on his hands. People v. Childs, 2022 WL 726786, at *1. Thus,

“there were some type of abrasions on Swanigan’s hands.” Id. Petitioner

was shown photographs of Swanigan’s hands during cross-examination,

and, when asked if he knew how the victim received the scrapes and blood

on his hands, petitioner replied: “Because he was holding the knife.” Id.

Petitioner, however, later testified that he “didn’t know how [Swanigan] was

holding the knife but it was in his hand,” and he believed that the victim was

3The Court will not repeat the Strickland standard when addressing the ineffective

assistance of counsel claim raised by petitioner in his second claim.

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1313 Filed 01/31/24 Page 7 of 22

holding the knife by the handle and not the blade. Id.

The Michigan Court of Appeals concluded that although there was no

direct evidence that the victim received the abrasions on his hands while

trying to defend himself, the evidence supported a reasonable inference

that the abrasions were caused by the victim’s hands coming into contact

with the serrated blade of the knife. The inference from the evidence that

the wounds were defensive wounds related to the prosecutor’s theory that

petitioner possessed the knife and was not acting in self-defense when he

stabbed Swanigan. People v. Childs, 2022 WL 726786, at *1.

In a footnote, the Michigan Court of Appeals also indicated:

Childs directs this Court to the medical examiner’s testimony

that, other than the fatal stab wound to his abdomen, Swanigan

had “no other injuries.” On the basis of this testimony, Childs

asserts that the prosecutor’s argument regarding defensive

wounds “was rejected” by the medical examiner. However, the

medical examiner explained her role as a pathologist, and it

was apparent that the aim of her testimony was to reveal the

cause of death. Regardless, as noted above, the photographs

depicting the injuries to Swanigan’s hands were admitted at

trial. Thus, notwithstanding the medical examiner’s testimony—

which the jury was free to believe or disbelieve—there was a

factual basis for the prosecutor’s argument.

Id., at *1, fn. 2.

Misrepresenting facts in evidence by a prosecutor can amount to

substantial error because doing so “may profoundly impress a jury and may

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1314 Filed 01/31/24 Page 8 of 22

have a significant impact on the jury’s deliberations.” Washington v.

Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000)(quoting Donnelly v.

DeChristoforo, 416 U.S. at 646). Likewise, it is improper for a prosecutor

during opening or closing arguments to bring to the jury any purported facts

which have not been, or will not be, introduced into evidence and which are

prejudicial. Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000). However,

prosecutors must be given leeway to argue reasonable inferences from the

evidence. Id.

The prosecutor’s remarks were not improper because they were

based on reasonable inferences from the evidence presented at trial.

Additionally, any prosecutorial misconduct in attempting to inject facts that

had not been introduced into evidence was also ameliorated by the trial

court’s instruction that the lawyers’ statements and arguments were not

evidence. (ECF No. 9-11, PagelD.859). See Hamblin v. Mitchell, 354 F.3d

482, 495 (6th Cir. 2003). Because the remarks about the wounds on the

victim’s hands being defensive were based on reasonable inferences from

the evidence, counsel was not ineffective for failing to object. Compare

Stermerv. Warren, 959 F.3d 704, 737-38 (6th Cir. 2020).

Petitioner next contends that the prosecutor committed misconduct

by admitting a video recording of petitioner after he had been detained in

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1315 Filed 01/31/24 Page 9 of 22

the back seat of a police vehicle following his arrest. In the video, petitioner

makes a number of unsolicited comments, such as “I just get locked up and

die, whatever,” “If the n **** don’t die he should die,” “I’m a killa baby

[indiscernible] pull it out and I’ll kill you,” who “don’t like most people baby. I

tolerate 'em. I [indiscernible] joke. I’ll kill you”, “You deserve to die,” “I

stabbed him, I’m a killer, a true killer,” and other similar comments. (ECF

No. 1, PagelD.37-38). Petitioner argues that his statements were irrelevant,

prejudicial, and inadmissible under M.R.E. 404(b), the rule prohibiting the

admission of “other acts” evidence.

Although F.R.E. 404(b) and its state counterpart M.R.E. 404(b)

generally prohibit a prosecutor from introducing evidence of a defendant’s

prior or other bad acts, the United States Supreme Court has never held

that the federal constitution forbids a prosecutor from doing so, thus the

rejection of petitioner’s prosecutorial misconduct claim by the Michigan

courts would not entitle petitioner to habeas relief. See Wagner v. Klee, 620

F. App’x 375, 378 (6th Cir. 2015).

The Michigan Court of Appeals concluded that petitioner’s unsolicited

remarks in the police vehicle were relevant and admissible to establish

petitioner’s state of mind at the time of the stabbing “which was directly

relevant to the prosecution’s theory of the case and weakened Childs’s

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1316 Filed 01/31/24 Page 10 of 22

theory of self-defense.” People v. Childs, 2022 WL 726786, at *2. The

Michigan Court of Appeals further concluded that the evidence was not

unduly prejudicial, because the evidence “was not offered for a character

purpose and it was highly probative to the issue of whether Childs had

been acting in self-defense when he stabbed Swanigan.” Id.

A prosecutor does not commit misconduct by introducing evidence

that is admissible under state law. See Dufresne v. Palmer, 876 F.3d 248,

261 (6th Cir. 2017). Moreover, a prosecutor “does not commit misconduct

by asking questions [or making comments] that elicit inadmissible

evidence.” Id., (quoting Key v. Rapelje, 634 F. App’x 141, 148 (6th Cir.

2015)). The prosecutor did not commit misconduct by introducing this

evidence.

Although petitioner alleges prosecutorial misconduct, his claim

“amounts in the end to a challenge to the trial court’s decision to allow the

introduction of this evidence.” Webb v. Mitchell, 586 F.3d 383, 397 (6th Cir.

2009). “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)(prosecutor did not

engage in misconduct by commenting on defendant’s prior assaultive

conduct in his opening and closing arguments, where trial court had

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1317 Filed 01/31/24 Page 11 of 22

previously ruled that such bad acts were relevant to establish the identity of

the perpetrator). The trial judge found that this evidence was relevant and

admissible.

The Michigan Court of Appeals determined that the video evidence of

petitioner’s comments from inside the police vehicle following his arrest

were admissible under Michigan law. This Court must defer to that

determination in resolving petitioner’s related ineffective assistance of

counsel claim. See Brooks v. Anderson, 292 F. App’x 431, 437-38 (6th Cir.

2008). Because this Court “cannot logically grant the writ based on

ineffective assistance of counsel without determining that the state court

erred in its interpretation of its own law,” this Court is constrained to reject

petitioner’s ineffective assistance of trial counsel claim. See Davis v.

Straub, 430 F.3d 281, 291 (6th Cir. 2005).

As a related claim, petitioner argues that that his lawyer was

ineffective for failing to object to the admission of five prosecution exhibits

that were extracted segments from the approximate one-hour video

recording. Petitioner claims that his attorney should have objected because

the exhibits were unduly cumulative, lacked any probative value, and

should have been excluded under MRE 403.

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In rejecting this claim, the Michigan Court of Appeals indicated that

after the video recording was admitted, the prosecutor told the judge that

the five additional exhibits “are just different segments so that we don’t

have to watch the whole hour and a half of the backseat video.”

Petitioner’s counsel had no objection, because the video recording was

already an admitted exhibit. The Michigan Court of Appeals found that the

prosecutor was not required to play the recording in its entirety. The

Michigan Court of Appeals then concluded that in light of the following, it

would have been futile for counsel to object. People v. Childs, 2022 WL

726786, at *3. This Court agrees that trial counsel was not ineffective for

failing to raise a futile objection, as these exhibits would almost certainly

have been admitted. See U.S. v. Johnson, 9 F. App’x 373, 374 (6th Cir.

2001 )(citing McQueen v. Scroggy, 99 F.3d 1302, 1328 (6th Cir. 1996)).

Petitioner next claims that his attorney was ineffective when she

falsely suggested that petitioner did not immediately come forward and say

that he acted in self-defense and was further ineffective for failing to

introduce petitioner’s comments from the patrol car video recording to show

that petitioner came forward immediately with his self-defense story.

The Michigan Court of Appeals rejected petitioner’s claim, concluding

that defense counsel reasonably could have chosen not to present

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1319 Filed 01/31/24 Page 13 of 22

evidence from the patrol car recording because petitioner’s comments were

damaging and “were not as supportive” as petitioner argued. People v.

Childs, 2022 WL 726786, at *3. The Michigan Court of Appeals further

found that defense counsel made a strategic decision to attempt to

distance petitioner from responsibility for any of his remarks, arguing, for

example: “Everything he says after is after the crack cocaine is infiltrating

his system. He says awful things. But he’s not on trial for saying awful

things. He’s not on trial for being mad, ornery, calm, being shocked, he’s

not on trial for any of those things.” Id. The Michigan Court of Appeals

observed that defense counsel chose to focus on the fact that petitioner

made a statement to the police, in which he claimed self-defense, only

hours after the incident, as soon as he was interviewed by the police. Id.

The Michigan Court of Appeals concluded that counsel’s decision to rely on

petitioner’s statement to the police, as opposed to the patrol car recording,

was objectively reasonable because that was when petitioner “came

forward” and talked to the police, as opposed to his comments in the patrol

car, where he seemed to be talking to himself and had not been

interrogated by the police. Id. The Michigan Court of Appeals found that

petitioner’s allegation that his lawyer made a “false” argument about when

he came forward was “misplaced.” Id.

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1320 Filed 01/31/24 Page 14 of 22

Although the right to the effective assistance of counsel extends to

closing arguments, an attorney “has wide latitude in deciding how best to

represent a client, and deference to counsel’s tactical decisions in his

closing presentation is particularly important because of the broad range of

legitimate defense strategy at that stage.” Yarborough v. Gentry, 540 U.S.

1, 5-6 (2003).

The Michigan Court of Appeals reasonably concluded that defense

counsel did not falsely suggest that petitioner did not immediately come

forward and inform law enforcement that he acted in self-defense.

Petitioner’s statements in the police vehicle were spontaneous and not

made in response to police questioning. Petitioner did tell the police during

his subsequent interrogation that he stabbed the victim in self-defense.

Counsel emphasized in her closing argument that petitioner did inform the

police that he acted in self-defense when he was interviewed by the police

following his arrest, which was the first time petitioner was questioned

about his version of events. Moreover, counsel was not ineffective in failing

to introduce petitioner’s statements from the patrol vehicle to bolster his

self-defense claim in light of the various damaging statements petitioner

made in the patrol vehicle that seemed to rebut his self-defense claim. See

e.g. West v. Berghuis, 716 F. App’x 493, 497 (6th Cir. 2017)(defense

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1321 Filed 01/31/24 Page 15 of 22

counsel’s advice to petitioner to plead guilty to second-degree murder

charge was not ineffective assistance; although some of two witnesses’

statements could have provided support for petitioner’s self-defense theory,

all statements also contained damaging information that would have

weakened or contradicted the self-defense claim).

Petitioner next claims that the prosecutor committed misconduct by

attempting to impeach petitioner with his prior conviction without filing the

proper notice and seeking a ruling from the judge that petitioner’s prior

conviction was admissible under M.R.E. 609. Petitioner’s counsel objected

to the question and following a bench conference, the prosecutor struck the

question. Petitioner never answered the question. People v. Childs, 2022

WL 726786, at *4. Petitioner was not deprived of a fair trial, in light of the

fact that petitioner never answered the prosecutor’s question. See Knapp v.

White, 296 F. Supp. 2d 766, 777-78 (E.D. Mich. 2003). Moreover, because

counsel did, in fact, object to the prosecutor’s question, petitioner’s related

ineffective assistance of trial counsel claim is without merit. See e.g. Durrv.

Mitchell, 487 F.3d 423, 440 (6th Cir. 2007).

Petitioner finally contends that he is entitled to habeas relief because

of the cumulative effect of the prosecutorial misconduct and the ineffective

assistance of counsel.

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Petitioner is not entitled to habeas relief on his cumulative

prosecutorial misconduct claim because “[a] review of the prosecutor’s

arguments and questioning in the aggregate in no way supports the

conclusion that [petitioner] was denied due process.” Cleveland v.

Bradshaw, 65 F. Supp. 3d 499, 537 (N.D. Ohio 2014). Likewise, the

individual claims of ineffectiveness alleged by petitioner are all essentially

meritless. Petitioner cannot show that the cumulative errors of his counsel

amounted to ineffective assistance of counsel. Seymour v. Walker, 224

F.3d 542, 557 (6th Cir. 2000). Petitioner is not entitled to relief on his first

claim.

B. The jury instruction/ineffective assistance of counsel claim.

Petitioner next argues that he was denied due process because the

jury instructions given on self-defense were inadequate or incomplete.

Although the judge gave the jurors the instruction on the use of deadly

force in self-defense, M. Crim. Jl 7.15, and the burden of proof when selfdefense is claimed, M. Crim. Jl 7.20, petitioner argues that the judge erred

by failing to also give M. Crim. Jl 7.16(2), no duty to retreat, and M. Crim. Jl

7.16a(1)(a), the rebuttable presumption regarding fear of death or great

bodily harm if the decedent is committing a home invasion or break-in.

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1323 Filed 01/31/24 Page 17 of 22

Alternatively, petitioner argues that trial counsel was ineffective for failing to

request these instructions.

The burden of demonstrating that an erroneous instruction was so

prejudicial that it will support a collateral attack upon the constitutional

validity of a state court conviction is even greater than the showing required

in a direct appeal. The question in such a collateral proceeding is whether

the ailing instruction so infected the entire trial that the resulting conviction

violates due process, not merely whether the instruction is undesirable,

erroneous, or even “universally condemned,” and an omission or

incomplete instruction is less likely to be prejudicial than a misstatement of

the law. Henderson v. Kibbee, 431 U.S. 145, 154-155 (1977).

M. Crim. Jl 7.16(2) provides that a person is not required to retreat

prior to using deadly force in self-defense if he is attacked in his own home.

The Michigan Court of Appeals held that petitioner was not entitled to

an instruction that he had no duty to retreat because the stabbing did not

occur in his room. People v. Childs, 2022 WL 726786, at *5. The Michigan

Court of Appeals noted that there was no evidence that the victim

threatened or attacked petitioner with the knife while petitioner was in his

bedroom. Contrary to what petitioner claimed on appeal, he did not testify

that the victim attacked him or threatened him with serious bodily harm

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1324 Filed 01/31/24 Page 18 of 22

while in the bedroom. Id. Instead, petitioner repeatedly testified that he was

in the hallway when the victim “came at” him with the knife. Petitioner

explained that after the argument about money in his bedroom, where

neither man threatened or physically touched the other, petitioner exited his

bedroom into the hallway, and he was still in the hallway when the victim

approached him with the knife. Petitioner testified that he walked out of his

room, away from Swanigan, because he “didn’t wanna hear no more,” not

because he had been threatened or was in fear. Id. The Michigan Court of

Appeals also found that Stevens, who was sitting in petitioner’s room at the

time of the stabbing, testified that the men were in the hallway and that she

was in petitioner’s room alone. Id. The Michigan Court of Appeals

concluded that petitioner’s and Stevens’s testimony showed that the victim

did not attack petitioner while he was within the “curtilage” of his bedroom

thus, “there was no factual dispute regarding whether Childs had a duty to

retreat, and, thus, M. Crim. Jl 7.16(2) was not applicable.” Id.

When the evidence at a habeas petitioner’s trial does not support a

particular jury instruction, based upon a state court’s interpretation and

application of state law, any alleged error based on that particular jury

instruction is not cognizable in federal habeas review unless the failure to

give the instruction amounts to a fundamental miscarriage of justice.

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1325 Filed 01/31/24 Page 19 of 22

Bowling v. Parker, 138 F. Supp. 2d 821, 906 (E.D. Ky. 2001). “Due

process does not require that a defendant be permitted to present any

defense he chooses. Rather, states are allowed to define the elements of,

and defenses to, state crimes.” See Lakin v. Stine, 80 F. App’x 368, 373

(6th Cir. 2003)(citing Apprendi v. New Jersey, 530 U.S. 466, 484-87 (2000);

McMillan v. Pennsylvania, 477 U.S. 79, 84-86, (1986)).

Petitioner is not entitled to habeas relief on his claim because under

Michigan law, he was not entitled to the instruction that he had no duty to

retreat before employing deadly force because he was not in a home or

dwelling when he stabbed Mr. Swanigan. Compare Berrierv. Egeler, 583

F.2d 515, 518 (6th Cir. 1978)(in prosecution for first-degree murder, in

which testimony showed that petitioner was in his own home when he killed

the victim, petitioner was entitled to habeas relief when the judge failed to

instruct the jury that a person in his own home has no duty of retreat).

Petitioner further claims that the court erred in failing to give the jurors

the M. Crim. Jl 7.16a(1)(a) instruction, which states that there is a

rebuttable presumption that the defendant was in fear of death or great

bodily harm if the victim was in the process of committing a home invasion

or break-in at the time that the defendant employed deadly force. The

Michigan Court of Appeals rejected this claim, because there was no

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1326 Filed 01/31/24 Page 20 of 22

. .5-

evidence the victim was committing a home invasion when the stabbing

occurred, since he was stabbed by petitioner in the hallway. People v.

Childs, 2022 WL 726786, at *6. Petitioner is not entitled to habeas relief

because the Michigan Court of Appeals determined that the evidence did

not support the giving of the M. Crim. Jl 7.16a1(a) instruction, where there

was no testimony that the victim had broken into petitioner’s room. See e.g.

Head v. Christiansen, No. 22-1876, 2023 WL 2682578, *2-3 (6th Cir. Jan.

27, 2023)(court’s failure to give the portion of M. Crim. Jl 7.16a instruction

that there is a rebuttable presumption of fear where the decedent is forcibly

removing the defendant from his motor vehicle did not entitle petitioner to

habeas relief where there was no evidence that the victim was trying to

remove the petitioner from his car at the time of the murder).

The Court rejects the related ineffective assistance of counsel claim.

Because the giving of M. Crim. Jl 7.16(2) and M. Crim. Jl 7.16a(1)(a) was

inappropriate under state law, counsel was not ineffective for failing to

request either instruction. See Strayhorn v. Booker, 718 F. Supp. 2d 846,

870 (E.D. Mich. 2010)(internal citations omitted). Petitioner is not entitled to

habeas relief on his second claim.

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1327 Filed 01/31/24 Page 21 of 22

* ■£

IV. Conclusion

The Court will deny the petition for a 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, 483-84 (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. “The district court

must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28

U.S.C. foil. §2254.

For the reasons stated in this opinion, 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. Myers v. Straub, 159 F. Supp.

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Case 2:23-cv-10864-GCS-PTM ECF No. 10, PagelD.1328 Filed 01/31/24 Page 22 of 22

2d 621, 629 (E.D. Mich. 2001). The Court will also deny petitioner leave to

appeal in forma pauperis, because the appeal would be frivolous. Id.

According, IT IS ORDERED that the petition for a writ of habeas

corpus is DENIED WITH PREJUDICE. It is further ORDERED that a

certificate of appealability and leave to appeal in forma pauperis are

DENIED.

s/Georqe Caram Steeh

HON. GEORGE CARAM STEEH

UNITED STATES DISTRICT COURT JUDGE

Dated January 31,2024

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record

on January 31, 2024, by electronic and/or ordinary mail

and also on Mario Ray Childs #132248, Macomb

Correctional Facility, 34625 26 Mile Road,

Lenox Township, Ml 48048.

s/LaShawn Saulsberry

Deputy Clerk

-22-

Additional material

from this filing is

available in the

Clerk's Office.