Petition for Writ of Certiorari — Aurelias Marshall, Petitioner v. Adam Douglas, Warden

no.

B

r 'n

----------- ------------ ——

IN THE

SUPREME COURT OF THE UNITED STATES!

UGINAL

FILED

JUL 1 1 2025

OFFICE

OF THE CLERK

ei iddcx/e

AURELIAS MARSHALL

— PETITIONER

VS.

ADAM DOUGLAS

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO

UN TIED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

AURELIAS MARSHALL

SAGINAW CORRECTIONAL FACILITY

■ 4..

"*

9625 PIERCE ROAD

FREELAND, MICHIGAN 48623

29-

RECEIVED

JUL 2 3 2025

QUESTION(S) PRESENTED

(1)

Petitioner

properly

presented

thirteen

claims

of

constitutional

violations and sub-issues to each state court including the Michigan

Supreme Court, the Federal District Court erroneously concluded that

eleven of the thirteen claims were procedurally defaulted because of

unexhaustion for the failure to present claims to the Michigan Supreme

Court.

(la) Did the Federal Court of Appeals review the district court's procedural

default ruling de novo as required by U.S.C. § 2254, or Cvijetinovic

v. Eberlin, 617 F.3d 833, 836 (6th Cir. 2010), Douglas v. Alabama, 380

U.S. 415, 422, 85 S.Ct. 1074, 13 L.Ed 2d 934 (1965) and was the state

procedural rule adequate to stop habeas review?

(lb) "A state rule must be clear, consistently applied and well established

at the time of petitioner’s purported default.'*

Ford v. Georgia, 498

U.S. 411, 423, 111 S.Ct. 850, 112 L.Ed 2d 935 (1991). Can this

Honorable Supreme Court review the district court’s ruling?

(2) Ihe federal district, court refused, to review the claim of actual

innocence, stating that the claim was not cognizable because it was a

freestanding

claim

that

did

not

claim

any

other

independant

constitutional violation, are claims of 'newly discovered evidence and

ineffective assistance of counsel’ claims independant claims?

•

(2a) Was the citing of Schulp v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130

L.Ed. 2d 808 (1995) insufficient to claim an indepedant constitutional

violation?

(3) Could the claims of ineffective assistance of counsel, and newly

discovered evidence, and actual innocence claims have served to excuse

-vii-

the ’cause and prejudice’ requirement of the inaccurate procedural

default bar the court impermissibly imposed? Murray v. Carrier 477

U.S. 496, 91 L.Ed 2d 397, 106 S.Ct. 2639 (1986).

(4) Trial counsel failed to properly preserve the claims of Prosecutorial

Misconduct and Improper Instructions to a deadlocked jury for review

in state court. Edwards v. Carpenter, 529 U.S. 446, 451-52, 120 S CU

1587, 146 L Ed. 2d 518 (2000).

(4a) Was the review conducted de novo according to McAdoo v. Elo, 365 F 3d

487, 498 (6th Cir. 2004)?

(5) There is a limited class of fundamental constitutional errors so

intrinsically harmful as to require automatic reversal. United States

v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584 (1982)_. In Michigan, any

substantial departure from the American Bar Association Standard Jury

Instruction 5.4 For Deadlocked Juries is grounds for reversable error.

In Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed.528

(1896),

the Supreme Court approved of instructing a jury during

deliberations in an effort to surmount jury difficulities in reaching

a unaimous verdict. In People v. Sullivan, 392 Mich 324; 220 NW2d 441

(1974), the Supreme Court "disapproved” further use of the Allen

charge and adopted

the American Bar Association—Standard—Jury

Instruction 5.4, codified Michigan Criminal Jury Instruction .3.12 as

the charge to be given in situations where a jury may be deadlock.

This instruction, now codified as Mich Crim JI 3.12 the trial judge

substantially departed from these instructions.

(5a) Did the Supreme Court disapprove futher use of the Allen charge and

adopt the Americian Bar Association Standard Jury Instruction 5.4 as

the charge to be given in situations where a jury may be deadlocked,

-viii-

in Michigan according to People v. Goldsmith, 411 Mich 555, 559; 309

NW2d 182 (1981)?

(6) The jury was deadlocked several times- The Sixth Circuit Court of

Appeals adjucation of the substantial departure failed to mention or

use the American Bar Association Standard as a guide. The trial judge

singled out the jury foreperson, made him stand before the entire

courtroom and then chastised the foreperson and also suggested that he

"was not leading discussions in a proper way'1 and that the jury may

need

to

elect

another

foreperson,

the

trial

judge

repeated

admonishments to the jury and the foreperson in particular to deliver

a unanimous verdict as part of its civic duty, and that failure to do

so constituted a failure of purpose.

(7) Is a coercive dynamite charge akin to improper reasonable doubt

instructions, and a structural error which cannot be dismissed or

reviewed piece-meal as the district court did?

(8) Petitioner requested but the state and district court refused to hold a

full and fair hearing, when in fact this claim was ripe for review,

Sawyer v. Hofbauer, 299 F. 3d 605, 610-611 (6th Cir. 1989), or an

evidentiary hearing for newly discovered evidence? Schlup v. Delo,

U.S. 298, 326-27, 115 S.Ct. 851 (1995). Barnes v. Elo, 231 F3d 1025,

1027-28 (6th Cir. 1999).

(9) In light of the 'newly discovered evidence, suppressed interrogational

notes,

withholding

private

investigative

report,

trustworthy

eyewitness accounts, and critical exculpatory material and physical

evidence', can this Honorable Court remand this matter to the Federal

district court for an evidentiary hearing to avoid a miscarriage of

justice? Coleman v. Thompson, 501 U.S. 722, 115 L.Ed 2d 640, 111 S.Ct

2546 (1991).

(10) Trial counsel suppressed the state-paid private investigator's report

which

chronicled

sevsral

instances

of

prosecutorial

witness

intimidation, suborning perjured testimony, allowing the prosecution

to admit inadmissible evidence and testimony, failure to object to

improper jury instructions, or preserve issues for appellate review,

failure to investigate or interview any of the prosecution’s witnesses

or Mark Armstrong, and Jermaine Sterling two individuals who reported

to police,

and passed polygraph examinations

stating that they

witnessed their friends attack the Joel Battaglia, on the night in

question, refused to put the prosecution to any type of adversarial

testing, failed to submit 10-day notice of alibi requiored by Michigan

Court System. Ihe appellate attorney had the private investigative

report which contained the prosecutorial misconduct in the form of

witness intimidation, and knowing use of perjured testimony, then by

raising

weak

issues

while

ignoring

stronger

more

meritorious

arguments. Matthews v. Simpson 603 F. SUPP 960 (6th Cir. 2008)

(10a) Because of these culmative errors and the denial of writ can this

Honorable Supreme Court determine whether or not counsel's performance

fell below an objectionable standard of reasonableness according to

the Sixth Amendment, under the professions! norms of Strickland v.

Washington, 466 U.S. 668, 80 L. Ed2d 674, 104 S. Ct. 2052 (1984),

Rompilla v. Beard, 545 U.S. 374, 378, 125 S. Ct. 2456, 162 L.Ed2d 360

(2005), vacate and remand because the Strickland Standard was not

used?

(11) For the purposes of 28 U.S.C. § 2254 larceny is an intent crime,

inferences in determinations is not an element, the Michigan Court Of

Appeals stated on page (2) of its opinion, that an ’’inference" could

be made that petitioner was arrested for perjury, so according to

Gadalupe Harwood’s testimony, petitioner must have been inferring

about Joel's murder. There is Supreme Court Precedent that a specific

or general intent to steal or carry away must be proven, Morrissette

v. United States, 342 U.S. 246 (1952).

(11a) The COA impermissibly substituted a witness (Acey Marshall) in place

of (Malcom Jeffries) to make an "inference." The COA exploited the

perjury charge against petitioner even though it had been dropped

before

trial began,

the court substituted Acey Marshall as

a

participant in the assault when there was not record evidence, and the

court made a "inference" to be an element of intent, can this

Honorable Supreme Court remand this matter back to the district court

because the thief must "take" (secure) and carry away, larceny is an

intent crime, and when a certain intent is a necessary element, the

crime cannot have been committed when the intent did not exsist, is

this correct? Carter v. United States 530 U.S. 255 (2000).

(12) The district court failed to review Fereral Rules of Evidence 404(a)

claiming the claims were not cognizable for habeas review. Petitioners

asserts the inadmissible 404 evidence made the trial unfair, and was

not procedurally defaulted.

(12a) Can this Honorable Supreme review because the COA stated that the

trial court and the prosecutor 'abused the court's discreation’ by

allowing 404 inadmissible evidence and tesatimony into the jury

providence.

(12b) Does Fed R. EVID. 404(a) prohibit the admission of character evidence

to prove action in conformity there-with on a particular occassion?

Does

404(b)

reflect

the common

law

tradition disallowing such

propensity evidence which is an improper basis for conviction and

evidence of a prior conviction should be subject to analysis under

Rule 403 for relative probative value and prejudicial risk of misuse

as propensity evidence?

(13)

The

prosecution

failed

to

correct

false

testimony

concerning

prosecution witness Shelia Reed, she was asked if she had been

promised, anything by the prosecution in exchange for her testimony,

she lied and continued to say 'no* when in fact she had been promised

time served on the life offense of perjury in this case.

(13a) Is this a Napue/Giglio XIV Amendment violation for the failure to

correct false testimony about enducements and leniency? Napue v.

Illinois, 360 U.S. 264, 3 L.Ed. 2d 1217, 79 S.Ct. 1173 (1959), the

prosecutor knew Shelia lied about enducements as well as knowing she

testified falsely about working with the petitioner at Holiday Inn at

the time this crime occurred. Giglio v. United States, 405 U.S. 150,

31 L.Ed. 2d 104, 92 S.Ct. 763 (1971); Burks v. Efeeler, 512 F2d 221 229

(6th Cir).

(14) Was Petitioner's due process rights violated by the state’s deliberate

action by their securing of convictions of three supposed accomplices

for the same crime, using inconsistent theories. Only petitioner was

charged with first degree felony murder while the other two people

were convicted of perjury.

Could

these factually contradicting

theories have passed the scrutiny of federal review?

(14a) Since Acey Marshall testified that Malcom Jeffries was the last person

to strike “the white boy" applying Michigan law, the Court held in

People v. Flowers, 191 Mich App 169;477 NW2d 473 (1991);

the vicarious liability of co­

"In situations involving

felons ,

the individual liability of each felon must be shown."

[Flowers, 191 Mich App at 178.]

(14b) Was liability shown between petitioner, and or Acey Marshall and or

Malcom Jeffries and or Quinten Howell? Where is the plan to commit

robbery?

(15) The prosecution served illegal subpoenas, Acey Marshall was a citizen

of Atlanta, Georgia, the police and detectives from Grand Rapids,

Michigan went to Georgia to effectuate questioning,

but had no

judicial authority to make discovery outside of the state of Michigan.

Acey was seized for Fourth Amendment purposes as soon as the police

transported him to the police station for quesfining pursuant to

Michigan's

Investigative

Subpoena,

that

subpoena

could

not

be

domesticated in Georgia according to Georgia, or Federal law.

(15a) Is the line crossed when the police from Michigan travel to Georgia,

without probable cause or a warrant detain and arrest a person for

investigative purposes, would that testiomony be considered "fruits of

a poisonous tree?

(16)

Judge

Shopping

was

not

reviewed.

All

45

of

the

prosecutor’s

"Investigative Subpoena Hearings" were held inside of Judge Mark

Trusock’s courtroom, Judge Trusock presided in all three of the

separate trial’s of the people that were sentenced for this crime.

Petitioner contends that he could never have received a fair review on

the Motion For Relief From Judgment 6.500, because the trial judge

*

♦ • • 'l

would never admit that he was wrong or mistaken in two or more

instances of either of the trials.

(16a) Petitioner alledges that the prosecutor and judge tilted the scale of

justice by monkeying with the random assignment of judge selection

United States v. Phillips, 59 F. Supp 2d 1178, 1180 (D Utah 1999).

Should the cases have been assigned by lot, Hughes v. Berryhill, 2017

US DIST LEXIS 163856?

(17)

Prosecutorial

discretion'

Misconduct consisted of not

founded by

only

the

the COA on direct appeal,

’abuse

of

inadmissible

evidence, leading questions, arguing facts not in evidence, vouching

for witness credibility, use of the perjury trap, wrongfully obtained

evidence, suppression of favorable evidence, claims have not been

reviewed.

(18) Please review claims of prosecutorial misconduct. Sixth Amendment

Colorable

showing

of

factual

innocence,

procution

deliberately

elicited false and incriminating statements. Kuhlman v. Wilson, 477

U.S. 436, 454 (1986). The prosecutor's improper comments infected the

trial with unfairness a denial of due process Parker v. Matthews, 132

S.Ct. 2148, 2153, 183 L.Ed 2d 30 (2012). United States v. Solivan, 937

F. 2d 1146, 1150 (6th Cir. 1991 a single misstep on the part of the

prosecutor was so destructive of a fair trial that reversal is

mandated, the prosecutor’s improper comments timed to exact prejudice

LIST OF PARTIES

[Xl All parties appear in the caption of the case on the cover page.

AURELIAS MARSHALL - PETITIONER

ADAM DOUGLAS - RESPONDENT

-xvi-

TABLE OF CONTENTS

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

OPINIONS BELOW

JURISDICTION

1

:........................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

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

......

REASONS FOR GRANTING THE WRIT

.

CONCLUSION

INDEX TO APPENDICES

APPENDIX A Judgment UNITED STATES COURT OF APPEALS SIXTH FOR THE CIRCUIT

Case No. 23-2057 March 4, 2025

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

Judgment UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICH.

Case No.20-13178 November 7, 2023

Rehearing Denied UNITED STATES COURT OF APPEALS SIXTH CIRCUIT

Case No. 23-2057 April 17, 2025

Order MICHIGAN SUPREME COURT

Case No. 161370 October 27, 2020

Order MICHIGAN SUPREME COURT

Case No. 155865 November 29, 2017

APPENDIX F

—../

-xvn-

TABLE OF AUTHORITIES CITED

PAGE NUMBER

18 U.S.C.S. § 1111

.

28 U.S.C. § 2254

27

.................................................. 22

Americian Bar Association Standard Jury Instruction 5.4

9, viii

Antiterrorism and Effective Death Penalty Act 1996 Statute 1214

18, 20

Michigan Criminal Jury Instruction 3.12

9, viii

U.S. § 5278

22

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

STATUTES AND RULES

Federal Rules Of Civil Procedure 59(e)

17

Federal Rules Of Civil Procedure 60(b)(l)-(6)

18

.......

Federal Rules Of Criminal Procedure 17

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

Federal Rules Of Criminal Procedure 52(b)

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

20

Federal Rules Of Evidence 402

x

Federal Rules Of Evidence 403 .................... .

x

Federal Rules Of Evidence 404................

-9-

x

TABLE OF AUTHORITIES CITED

PAGE NUMBER

Amos v. Renico,

562, US 86, 105, 131, S Ct 770, 178 L Ed2d 624 (2011).

20

Allen v. United States,

164 US 492 17 S Ct 154, 41 L Ed 528 (1896)

viii

Barnes v. Elo,

231 F3d 1025, 1027-28 (6th Cir. 1999)

ix

Beasley v. United States,

491 F. 2d 687 (6th Cir. 1974)

.....

• ------ 23

Brady v. Maryland,

373 U.S. 83, 10 L Ed2d 215', 83 S Ct. 1194 (1963)/

23

Burks v. Egeler,

512 F2d 221 229 (6th Cir)

xii

Carter v. Jago,

637 F. 2d 449, 457 (6th Cir. 1980)

.............. 21

Carter v. United States,

530 U.S. 255 (2000)..................................

xi

Cavazos v. Yukins,

867 F. 3d 661, 672 (6th Cir. 2017)......................

25

Cullen v. Pinholster,

563 U.S. r!70, 181, 131 S. Ct. 1388, 179 L Ed. 2d 557 (2011).......22

Cvjetinovic v. Eberlin,x

617 F.3d 833, 836 (6th Cir. 2010)......................

-10-

.vii

Douglas v. Alabama,

380 U.S. 415, 422, 85 S.Ct 1074, 13 L. Ed 2d 934 (1965)-• .......... 20, vii

Duncan v. Henry,

513 U.S. 365-366; 115 S.Ct. 887; 130 L.Ed 2d 865 (1995)....’

18

Edwards V. Carpenter,

529 U.S. 446, 451-52, 120 S Ct. 1587, 146 L Ed. 2d ,518 (2000).

Eichwedel v. Chandler,

696 F. 3d 660 (CA 7 2012).

.15

Ford v. Georgia,

498 U.S. 411, 423, 111 S.Ct. 850, 112 L.Ed 2d 935 (1991).

Gray v. Greer,

800 F. 2d 644 (7th Cir. 1985).

.................19

Harrington v. Richter,

562 U.S. 86, 105, 131, S.Ct. 770, 178 L. Ed2d 624, (2011).

Hill v. Hofbauer

337 F3d 706, 719-20 (CA 6 2003).

..... 27

Hughes v. Berryhill,

2017 US DIST LEXIS 163856.............

Illinois ex rel. McNichols v. Pease,

207 US 100 (1907).

15

-ivx

....................... 22

Jamison v. Collins,

100 F Supp. 2d 647 (2000).

19

Jackson v. Virginia /

443 U.S. 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979).

18

Kuhlman v. Wilson,

477 U.S. 436, 454 (1986)...... ............................ 1VX

Kyles v. Whitley,

514 U.S. 419, 434-35 and n.8, 131 L Ed. 2d 490, 115 S Ct. 1555 (1995). 23

Lowenfield v. Phelps,

484 US 231, 108 S Ct.. 546 98 L Ed. 2d 568 (1988)............... 21

Martin v. Grosshans,

424 F.3d 588 (CA 7 2005).................................. 25

Matthews v. Simpson,

603 F. SUPP 960 (6th Cir.,(2OO8)........... ................. x

McAdoo vo Elo,

365 F 3d 487, 498 (6th Cir. 2004)........................... viii

Miller-El v. Cockrell,

537 U.S. 322, 154 L ED.2d 931, 123 S. Ct. 1029 (2003)............ 20

Morrissette v. United States,

342 U.S. 246 (1952)...................................... xi

Napue v. Illinois,

360 U.S. 264, 3 L.Ed. 2d 1217, 79 S.Ct. 1173 (1959)...................... .... xii

Nix v. Whiteside,

475 U.S. 157, 175, 89 L Ed 2d 123, 106 S Ct. 988 (1986)...........23

Parker v. Matthews,

132 S.Ct. 2148, 2153, 183 L.Ed 2d 30 (2012)......... .......... ivx

Pyle v. Kansas,

317 U.S. 213 (1942)...................................... 19

*12-

People v. Aaron

409 Mich 672; 299 NW2d 304 (1980)

26, 27

People v. Dumas,

454 Mich 390, 402-04; 563 NW2d 31 (1997)....

26

People v. Flowersa

191 Mich App 169; 477 NW2d 473 (1991).

................ xii

People v- Goldsmith,

411 Mich 555, 559; 309 NW2d 182 (1981).

ix

People v. Sullivan.

392 Mich 324; 220 NW2d 441 (1974).................

viii

Rompilla v. Beard,

545 U.S. 374, 378, 125 S. Gt. 2456, 162 L.Ed2d 360 (2005).

x

Sawyer v. Hofbauer,

299 F. 3d 605, 610-611 (6th Cir. 1989)

ix

Schulp v. Delo,

513 U.S. 298, 115 S.Ct. 851, 130 L.Ed. 2d 808 (1995)

vii, ix

Strickland v. Washington,

466 U.S. 668, 80 L. Ed2d 674, 104 S. Ct. 2052 (1984)..

18

U.S. Ex Rel. McCall v. O'Grady,

908 F.2d 170 (CA 1990).

.............. 26

United States v. Bagley,

105 S Ct. 3375 (1985) •

United States v. Frady,

456 U.S. 152, 170, 102 S.Ct. 1584 (1982).

23

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

viii

United States v. Gaudin,

515 U.S. 506, 510; 115 S. Ct. 2310; 132 L. Ed2d 444 (1995)United States v. Phillips,

59 F. Supp 2d 1178, 1180 (D Utah 1999)........................

United States v. Solivan,

937 F. 2d 1146, 1150 (6th Cir. 1991.

Workman v. tate.

957 F.2d 1339 (CA 6 1992).

-14-

. 15

ivx

ivx

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[X] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix —A— to

the petition and is

[ ] reported at------------------ —--------------------- —------------ > or’

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

The opinion of the United States district court appears at Appendix---- B_ to

the petition and is

[ ] reported at----------- --------------------- —---------------------- ’> or’

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

[

For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

[ ] reported at----- - ------------ --------------------- —------------- > or’

[ 1 has been designated for publication but is not yet reported; or,

[7- is unpublished.

The opinion of

MICHIGAN APPEALS.----------------------- court

appears at Appendix?^-. L?to the petition and is

[ ] reported at------------ ------------------------------ —------------ ’ or»

[ has been designated for publication but is not yet reported; or,

[ is unpublished.

JURISDICTION

[x] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

March 4, 2025

was

[ ] No petition for rehearing was timely filed in my case.

[Xl A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

April 17, 2025

1 and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including(date) on(date)

in Application No.

A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

[ ] A timely petition for rehearing was thereafter denied on the following date:

--------------------------------- , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including(date) on(date) in

Application No.

A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitutional Amendment IV......................

United States Constitutional Amendment V

19. 2

19, 20

United States Constitutional Amendment VI

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

19, 20

United States Constitutional Amendment VIII

........

19, 20

United States Constitutional Amendment XIV

............. 19, 20

-8-

STATEMENT OF THE CASE

The trial court sentenced petitioner to life without the possibility of

parole. Petitioner continues to assert actual innocence. Liability was never

shown, there was never any proof of robbery or larceny, there is no record

evidence that could allow The Michigan Court Of Appeals to impermissibly

substitute by '’inference” the prosecution’s witness Acey Marshall as a co­

conspirator and participant in an assault and robbery, Acey was never even a

suspect. There was a defect in the integrity of the Michigan Court Of Appels

proceedings on direct appeal.

The Michigan Court Of Appeals, affirmed petitioner's conviction, People v.

Marshall, Michigan Court Of Appeals 329362, April 11, 2017. Petitioner

contends that every citing applied by the Michigan Court Of Appeals was

either "contrary to" or involved an "unreasonable application" of clearly

established Federal Law, the state court arrived at a conclusion opposite to

that reached by The Supreme Court Of The United States on questions of law,

trial counsel did not satisfy Strickland’s Deferential Standard; Harrington

v. Richter, 562 U.S. 86, 105, 131, S. Ct. 770, 178 L. Ed2d 624, (2011).

Deciding facts in opposition to the case on materially indistingable facts

and evidence, every reviewing courts must distinguish reasonable speculation

from suffiecient evidence, there is no record evidence of any statements by

Malcom Jeffries, or petitioner indicating that either of them planned an

assault and purported robbery, the record is utterly devoid of evidence of a

felonious taking of property from Joel, or that Joel even possessed a wallet

or was wearing a wristwatch or other jewelry during the assault on him, or

at anytime that day. United States v. Gaudin, 515 U.S. 506, 510; 115 S. Ct.

2310; 132 L. Ed2d 444 (1995), The Fifth and Sixth Amendments Of The United

States

Constitution

require

criminal

convictions

to rest

upon

jury

determination that defendant is guilty of every element of the crime with

which he is charged, beyond a reasonable doubt. The Michigan Supreme Court

155865, denied leave to appeal November 29, 2017. The state claimed that

claims were never submitted to the state's highest court.

Tne state court denied petitioner's post conviction 6.500 Motion For Relief

From Judgment, June 12, 2019, People V Marshall, No. 15-00706 Michigan 17th

Circuit Court. The court failed to address the correct Brady or federal

issues, also failing to address issues of prosecutorial misconduct such as

witness

intimidation,

inadmissible

evidence,

credibility

of

use

known

of

eliciting

witnesses,

perjured

tainted

improper

testimony,

testimony,

police

submitting

vouching for

suggestive

the

identification

procedures, withholding exculpatory, and material evidence, there was no

adjudication on the merits,

through sheer inadvertence, or failure to

address numerous other violations presented as issues and or claims.

The Michigan Court Of Appeals 351587 denied leave to appeal March 31, 2020.

The Michigan Supreme Court 161370, denied leave to appeal October 27, 2020.

The United States District Court Western District of Michigan Case No. 1:18-

cv-01367 ordered Stay January 7, 2019, case then tranferred to, The United

States District Court Eastern District Of Michigan Southern Division denied

petitioner's writ of habeas corpus under 28 U.S.C. § 2254, Case No. 20-

13178 on November 7, 2023, The Federal District Court stated that claims

were unexhausted and procedurally defaulted.

The district court's own evidence belies its record evidence in Case No. 2013178, Petitioner demonstrated claims had been properly exhausted and were

in fact duly noted in the Federal District Court’s Judgment and Opinion,

Marshall v. Winn, 2023 U.S. Dist. LEXIS 199895 in its "footnotes" by

?

416-

-J

HONORABLE JUDGE LAURIE J. MICHELSON, Verbatim;

'’However it is true that these claims were raised in appeal

brief’s

that were

ultimately stricken and

thus never

considered by the appellate court's on direct appeal, but

Marshall did raise these claims, as well as his Ineffective

Assistance of Trial and Appellate Counsel, and Prosecutorial

Misconduct claims in his post conviction Motion For Relief

From Judgment. [See ECF No. 15-15, Page ID. 1574, 1576,

1579, 1580, 1591-1595]."

"Therefore these claims are not

procedurally defaulted."

Petitioner alerted The United States District Court's Eastern District Of

Michigan, HONORABLE JUDGE LAURIE J. MICHELSON in reference to Case No. 20-

13178, with a motion to alter or amend the judgment under Federal Rule Of

Civil Procedure 59(e) or for relief from judgment under Rule 60(b) based on

"a need to prevent manifest injustice, and a clear error of law." Petitioner

filed an Application For Certificate Of Appealability and Notice Of Appeal

Case No. 23-2057 to the

The United States Court Of Appeals For The Sixth

Circuit, petitioner then moved to have the certificate of appeability

expanded, by The Sixth Circuit Appeals Court, HONORABLE JUDGE BARBARA

STRANCH, denied the motion and refused to expand the certificate of

appealability. The United States Court of Appeals denied the one (1) claim

that was certified for review, petitioner was denied a Rehearing En Banc

April 17, 2025

Petitioner cited to the Federal Appellate Court, Federal Rules Of Criminal

Procedure

52(b)

which

authorizes

the

Courts

of

Appeal

to

correct

"particulary egregious errors," and that failure to review these claims will

result in a miscarriage of justice.

Sister circuit’s have held, a state expressly waives exhaustion for purposes

of U.S.C. § 2254(b) (3) where as here, it concedes clearly and expressly

that the claim has been exhausted, regardless of whether that concession is

correct. Eichwedel v. Chandler, 696 F. 3d 660 (CA 7 2012).

Petitioner as demonstrated that The USDC did not reach the merits of any of

the Constitutional claims, but denied relief because of procedural issues.

Petitioner argued that exhaustion requirements were met, and that the court

should have issued a certificate of appeability because, he has shown that

reasonable jurist would find the court’s assessment of Constitutional claims

debatable or wrong, and that reasonable jurists would find it debatable

whether the petition stated valid claims of a denial of Constitutional

rights, and debatable whether the USDC was correct in its procedural ruling.

Claims were not even considered for review, the deferential standard of the

Antiterrorism and Effective Death Penalty Act; Jackson v. Virginia, 443 U.S.

307 (1979) and Strickland v. Washington, 466 U.S. 668 (1984) do not apply,

petitioner's motion fell under the catchall provision of Rule 60(b)(6) which

provided the court opportunity to relive petitioner from final judgment for

any other reason that justified relief beyond those set forth in Rule

60(b)(l)-(5).

The states mechanism has broken down in this case amounting to a IV

Amendment and due process violation. It was crucial that the Federal

District Court’s procedure in review would not be based upon an unreasonable

determination of independent and adequate state grounds to deny relief or to

even review the states procedural ruling

-18- —

novo

fDoncan~v7~ Henry7~5l3'

U.S. 365-366; 115 S.Ct. 887; 130 L.Ed 2d 865 (1995), the miscarriage of

justice was state law issue of prejudice and an issue of federal due

process.

Petitioner’s imprisonment also resulted from a XIV Amendment violation of

perjured testimony, knowingly used by the state authorities to obtain a

conviction, and from the deliberate suppression by those same authorities of

evidence that was favorable to petitioner's defense, Pyle v. Kansas, 317

U.S. 213 (1942); suppression of exculpatory evidence material to guilt and

sentencing was V, VI, VIII, and XIV Amendment violation which affected the

overall effect and would have rendered a totally different outcome,

undermining the confidence in'the jury’s finding of guilt Jamison v. Collins

100 F Supp. 2d 647 (2000).

Appellate counsel failed to raise viable issues, the failure was prejudicial

because it could have resulted in reversal of the conviction, or an order

for a new trial, the issues were obvious and significant, Gray v. Greer, 800

F. 2d 644 (7th dr. 1985).

REASONS FOR GRANTING THE PETITION

Petitioner charges that this is a actual innocence case and that the state

holds him in confinement without due process of law in violation of the

Fourth, Fifth, Sixth, Eigth and Fourteenth Amendments to the Constitution of

the United States.

An inquiry into the adequacy of a state procedural rule to forclose review

"is itself a federal question." Douglas v. Alabama, 380 U.S, 415, 422, 85

S.Ct 1074, 13 L. Ed 2d 934 (1965), whereas

Amos v. Renico, 683 F.3d 720 (GA

6 2011) applies a presumption that a subsequent unexplained order leaves the

judgment of the earlier court in place and. does not invoke procedural

default, the district court did not review the state court's record, which

should have allowed the appellate court to apply the application of Fedreal

Rules Of Criminal Procedure 52(b), [See EGF No. 15-15, page ID. 1574, 1576,

1579, 1580, 1591-1595].

The district court erroneously applied a procedural bar to petitioner's

claims, enforcing a bar grounded on conjecture, the procedural default

doctrine was imposed as an absolute bar to federal relief, when in fact the

claims of Ineffective Assistance of Counsel, Actual Innocence, and Newly

Discovered Evidence would served to excuse the 'cause and prejudice' if it

was found to exist.

The deference due under the Antiterrorism and Effective Death penalty Act

does not apply, neither the federal district or appellate court addressed the

merit's of petitioner's claims, but the state court's decision on the merits

were either 'contrary to, or involved an unreasonable application of clearly

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

States, and because "the state court did not assess the merits of claims

-20-

properly raised in petitioner's habeas petition the deference due under ARDPA

does not apply. Maples v. Stegall, 340 F 2d 433, 436 (6th Cir, 2008)t

There

is

a

limited class

of

fundamental constitutional errors

so

intrinsically harmful as to require automatic reversal, Substantial Departure

From

the American Bar Association Standard Jury Instruction 5.4 FOR

DEADLOCKED JURIES is grounds for automatic reversal. The Sixth Circuit Court

of Appeals review of the substantial departure adjudication failed to mention

or use the Americian Bar Association Standard, the trial court's improper

departure deprived petitioner of the constitutional right to a properly

instructed and uncoerced jury verdict. Lowenfield v. Phelps, 484 US 231, 108

S Ct.. 546 98 L Ed. 2d 568 (1988).

Certiorari should be granted because the federal court's should have

granted an evidentiary hearing where ‘newly discovered evidence was not bald

assentations, but had merit and was supported adequately and was greatly

outweighed by the prejudice flowing from the tainted, omitted, suppressed and

undiscovered evidence. William v Coyle, 260 F. 3d 684 (6th Cir 2001). The

district court should have issued a certificate of appeability, because

claims deserved encouragement to proceed further, Miller-EL v. Cockrell, 537

U.S. 322, 154 L ED.2d 931, 123 S, Ct. 1029 (2003).

The

admission

of

petitioner's

constitutional violation.

prior

criminal

conviction

is

a

Petitioner requested a Ginther Hearing citing

Barnes v. Elo 231 F3d 1025, 1027-28 (6th Cir. 1999), the District Court's

inquiry should have been to review the claim of improper admission of “other

acts" was whether the evidence was rationally connected to the crime charged.

Ja£Q> 637 F. 2d 449, 457 (6th Cir. 1980), the Michigan Appeals

Court's opinion stated that the prosecutor and trial court "abused the

court's discretion" by the admission of Clarrissa Polite's inadmissible

-21-

testimony about the incident with the extension cord, which contained prior

felony information and evidence.

Fourth Amendment violations, the serving of illegal subpoenas and arrest

on witnesses

in

Atlanta,

Georgia,

by detective's

from Grand Rapids,

Michigan,US § 5278, Acey Marshall was not a fugitive from justice within the

meaning of the Constitution and the laws of the United States. Illinois ex

rel. McNichols v. Pease, 207 US 100 (1907). Where a Michigan Subpoena has no

power and was not served by U.S. Marshal’s authorized to arrest citizens of

the state of Georgia. Improper Police Suggestive Identification, the knowing

use of perjured testimony, and failing to correct perjured testimony, arguing

facts not in evidence, vouching for witness's credibility, intimidating

witnesses, omitting evidence, conduction of an illegal search by detectives,

misstatements of the law by the prosecutor, eliciting inadmissible hearsay

testimony, presenting inadmissible evidence, judge shopping, are some of the

issues and claims challenged on both post, and collateral appeal.

there was no decision on the merits of petitioner’s claims, the Supreme

Court holdings in Cullen v. Pinholster, 563 U.S. 170, 181, 131 S. Ct. 1388,

179 L Ed. 2d 557 (2011)

Carter v. Jago, 637 F. 2d 449, 457 (6th Cir. 1980), does not prohibit this

Honorable Court from correcting the necessary errors.

Because the federal claims have been rejected as a result of sheer

inadvertence, it could not have been evaluated based on the intrinsic right

and wrong of the matter.

U.S.C. § 2254(d) does not apply because the state did not provide any

review of the federal claims at all. There was no state adjuication of the

claims on the merits. The claims were presented to each tier up to the

Michigan Supreme Court and failure to consider these claims will result in a

-22-

"Fundamental Miscarriage of Justice." The Michigan Supreme Court denied leave

without addressing the merits of the Brady claims, Brady v. Maryland, 373

U.S. 83, 10 L Ed2d 215, 83 S Ct. 1194 (1963), there was a reasonable

probability that there would have been a different result had the evidence

been disclosed. Kyles v. Whitley 514 U.S. 419, 434-35 and n.8, 131 L Ed. 2d

490, 115 S Ct. 1555 (1995). The Strickland Standard was first set forth by

the panel of the Sixth District Court in Beasley v. United States, 491 F. 2d

687 (6th Cir. 1974). Strickland, Supra, at 693 ("We belive that a defendant

need not show that counsel’s deficient conduct more likely than not altered

the outcome in the case. Nix v. Whiteside, 475 U.S. 157, 175, 89 L Ed 2d 123,

106 S Ct. 988 (1986) (A defendant need not establish that the attorney's

deficient performance more than not altered the outcome established the

prejudice under Strickland"), thus the reasonable probability of a different

result was accordingly shown where the government's evidentiary suppression

undermined the confidence in the outcom of the trial. United States v. Bagley

105 S Ct. 3375 (1985) Bagley 473 U.S, at 678.

There was

sufficient evidence to support the instruction regarding

evidence of other offences and the relevance limited to the particular issue.

The tial judge promised at the ’prosecutor's motion in limine that he would

fashion an instruction concerning the perjury charge against petitioner, he

did not mention the perjury charge against petitioner at all during the

entire trial, (the perjury charge was dropped before trial) however the judge

allowed the prosecutor to exploit the perjury charge, which did not fairly

and adequately protect petitioner’s rights, or the basic and controlling

issues in the case and has therefore lead to a miscarriage of justice because

the jury did not understand that the perjury charge was for a periphial

matter and was dropped before trial and that it should not be incooperated as

evidence into its deliberations the miscarriage of justice occurred because

the district court in it’s denial of the claim of ’insufficient evidence of

malice and robbery' relied on the court of appeals misrepresentation of the

facts presented at trial. It is the responsibility of the fact finding jury

to decide what conclusions should be drawn from the evidence admitted at

trial, and even though the trial court allowed the inadmissible and tainted

perjury evidence into it's proceedings, it never found fact that Acey

Marshall was in any way tied to being a participant in attacking Joel or that

he planned to rob anyone, as a matter of fact the jury sent the judge a note

asking "was Acey Marshall ever a suspect in this case? To which the judge

answered "No." The COA impermissibly substituted Acey Marshall who was a

witness for the prosecution, to replace supposedly Malcom Jeffries as one of

the assailants, the COA opined that an 'inference' can be made because

petitioner was arrested for perjury, that he must have been talking to his

borther Acey Marshall about a murder, that was according to Gaudalupe

Harwood's testimony, which was forced through prosecutorial misconduct and

intimidation, and if it was at all to be belived, should have been 'other

act's' evidence, but because the perjury charge was dropped, it should not

have been admitted to the jury at all. Acey Marshall was never 'inferred' to

have been anything other than a witness, who never witnessed a robbery or

larceny of a person whom the prosecution never had him to identify as Joel.

There is no record evidence that petitioner and his brother Acey Marshall

ever

planned

or participated

in robbing anybody.

The

appeals

court

impermissibly substituted Acey Marshall as opposed to Malcom Jeffries as a

co-defendant, the failure to give a limiting instruction should be reviewed

for an abuse of discretion because it not only left the jury without a proper

foundation oh how to evaluate the dropped perjury charge that should not have

-24-

been entered into the decision making process, but the gravest miscarriage of

justice occurred when the Michigan Court of Appeals used the perjury charge

to affirm petitioner's conviction. The Federal District Court should have

over-turned the state court's decision regarding Harwood's vague testimony

because the court did not objectively apply the non-specific information but

unreasonably applied the witnesses testimony to the prosecution's theory,

proofs, testimony, and evidence, which stated that "Joel was not in the

middle of any kind of drug deal what-so-ever,"

as Harwood testified to a

drug deal gone wrong, his testimony beared no sirnbalence at all to the case.

Cavazos v. Yukins, 867 F. 3d 661, 672 (6th Cir. 2017). Harwood told the

private investigator the prosecutor gave him a piece of paper and told hinm

to read it word for word or he would go back to prison, he further told the

investigator his testimony at the preliminary examination was taken out of

context, but the investigative report was suppressed by both the trial

attorney and prosecutor, had this report been read for the jury, no juror

would have convicted petitioner.

Trial counsel's actions, and inactions in this case were not consistent

with professional

standards

set

forth according

to

the American Bar

Association Standards see Strickland, 466 U.S, at 688. ABA Standards For

Criminal Justice. Trial counsel failed to file notice of alibi, object to the

substantial departure from the ABA Standard Jury Instructions 5.4,

.the

prosecution's vouching for witnesses, failure to investigate witnesses who

claimed to be witnesses to the assault on Joel Battaglia, failing to object

to inadmissible testimony, counsel was deficient for failing to make the

proper objections and for failing to move for a mistrial after the prosecutor

misquoted the law by stating to the jury during closing argument "that who

ever murdered Joel was guilty of felony murder by law".

Martin v. Grosshans,

424 F.3d 588 (CA 7 2005). Defense counsel has not represented petitioner to

the staisfaction of the Sixth Amendment for failure to present the private

s

investigator's report which would in all reasonable probability cast doubt on

the testimony of the prosecution's main identification witness. U.S. Ex Rel.

McCall v. O'Grady, 908 F.2d 170 (CA 1990). The prosecutor exacerbated this

gap in the evidentiary record when she misstated the law to the jury during

closing arguments:

“at the time of the incident the evidence is that he was

being robbed and that he was killed in the process of that,

so whoever killed Joel is guilty of a felony murder by law."

In People v. Aaron, 409 Mich 672; 299 NW2d 304 (1980) The Michigan Supreme

Court abrogated tne common-law felony murder rule "which defined malice as

the intent to commit the underlying felony." Aaron, 409 Mich at 727

As a

threshold matter, it should be noted that petitioner’s participation in a

robbery would not ipso facto imply that he intended to kill, intended to do

greatly bodily harm, or wantonly and willfully disregarded tne likelihood

that the natural tendency of his behavior would be to cause death or great

bodily harm. Applying Michigan law, '"The intent to commit the felony, of

itself, does not constitute a sufficient mens rea to establish the crime of

murder. See People v. Dumas, 454 Mich 390, 402-04; 563 NW2d 31 (1997)

In situations involving the vicarious liability of co-felons, the individual

•

liability of each felon must be shown. It is fundamentally unfair and in

violation of basic principles of individual criminal culpability to hold one

felon liable for an unforeseen death that did not result from the actions

agreed upon by the participants.

-26*’

-.

It is fundamentally unfair and in violation of basic principle of individual

criminal culpability to hold one felon liable for the unforeseen and

unagreed to results of another felon, to hold otherwise would be to impose

liability for first degree murder in all cases where accidental death occurs

during a robbery, which would essentially resurrect the common-law felony

murder rule that Aaron abolished and further violate Aaron's mandate that a

jury may not infer malice from the intent to corrtnit the underlying felony

alone.

The Michigan Supreme Court abrogated the commom law felony law felony murder

rule, “which defined malice as the intent to commit the underlying felony."

Juries are required to take the additional steps of finding beyond a

reasonable doubt, that petitioner himself possessed the requisite intent

with respect to murder. Michigan law requires the jury to find a causal link

between the felony and the death, a mere intent "to injure falls short of

malice" and participation in committing the underlying felony without a

finding of malice with respect to the death likewise falls short of felony

murder, a possibility of malice is insufficient, malice must be proven

beyond a reasonable doubt. In cases where death was purely accidential

application of the felony murder doctrine is unjust and should be precluded.

People v. Aaron, 409 Mich 731.

It is well settled that "the jury may not find malice from the intent to

commit the underlying felony alone." Aaron, 409 Mich at 730 See also, Hill

v. Hofbauer, 337 F3d 706, 719-20 (CA 6 2003) ("Malice cannot be inferred

Vfrom Hill’s complicity in the robbery plot alone") (applying Michigan law).

''Larceny federal statute 18 U.S.C.S. § 1111 has been violated, specific

intent is an element that was not proven, and it is not the role of the

court of appeals on direct appeal to substitute its judgment by substituting

-27-

This Honorable Supreme Court stands as the sentinel for every circuit,

district and appellate court who may have simply overloofefcertain issue

through sheer inadvertence, or because the judicial mechanism is broken, or

maybe most constitutuional claims require close scrutiny, the list of

reasons are endless.

Petitioner states respectfully that there has been a miscarriage of

justice in this case and failure to review these claims will result in a

innocent man spending the rest of his life unconstutionally confined.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

i

CL

Date:

July 10, 2025