Petition for Writ of Certiorari — Clarence Borns, Petitioner v. Troy Chrisman, Warden

Case 2:17-cv-13694-TGB-EAS ECF No. 30, PagelD.3323 Filed 03/31/25 Page 1 of 51

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CLARENCE BORNS, Case No. 2:17-CV-13694-TGB

Petitioner, HONORABLE TERENCE G. BERG

OPINION AND ORDER

vs. GRANTING CONDITIONAL

WRIT OF HABEAS CORPUS

TROY CHRISMAN,}!

Respondent.

Petitioner Clarence Borns, a Michigan state prisoner, has filed a

pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

challenging his convictions for assault with intent to murder, assault

with intent to do great bodily harm less than murder, being a felon in

possession of a firearm, and possession of a firearm during the

commission of a felony. Petitioner raises ten claims for relief. Having

carefully reviewed the record, the briefs of the parties, and the relevant

law, the Court holds that defense counsel was ineffective for failing to

investigate and call crucial witnesses—a failure that prejudiced the

1 The proper respondent in a habeas case is the custodian of the facility

where the petitioner is incarcerated. See Rule 2(a), Rules Governing

Section 2254 Cases. Thus, the Court substitutes Troy Chrisman as the

Respondent.

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defense. The state court’s rejection of this claim was an unreasonable

application of clearly established Supreme Court precedent.

Accordingly, for the reasons stated below, the Court will GRANT

a conditional writ of habeas corpus.

I. Background

Petitioner was charged in Wayne County Circuit Court with three

counts of assault with intent to commit murder related to a single

incident involving three complainants—James Rankin, Evelyn

Hardwick, and Latisha Hardwick. A jury convicted Petitioner of assault

with intent to commit murder as to Rankin, Mich. Comp. Laws § 750.83,

the lesser included charge of assault with intent to do great bodily harm

less than murder as to Evelyn Hardwick, Mich. Comp. Laws § 750.84,

and acquitted Petitioner as to all charges related to Latisha Hardwick.

He was also convicted of being a felon in possession of a firearm, Mich.

Comp. Laws § 750.224f, and possession of a firearm during the

commission of a felony, Mich. Comp. Laws § 750.227b. On August 19,

2013, Petitioner was sentenced as a third habitual offender to 20 to 30

years for assault with intent to commit murder, 10 to 20 years for assault

with intent to do great bodily harm, 5 to 10 years for being a felon in

possession, and 2 years for felony firearm.

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As recited by the Michigan Court of Appeals, the following facts

were adduced at trial and are presumed correct on habeas review.

Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009) (citing 28 U.S.C.

§ 2254(e)(1)).

The case arises from a shooting that occurred on December 9,

2012 in Detroit. That morning, Evelyn [Hardwick] discovered

broken windows in two of her homes. Her son, Rankin,

believed that his former girlfriend, Carlyssa Borns, was

somehow involved in causing the damage. Evelyn, Rankin,

Latisha, and Evelyn’s other daughter, Lativia Hardwick,

went together to the Borns’ family home to get more

information. They drove and parked several houses away

from the home. Members of the Borns family, including

defendant, were outside their house. Evelyn and her two

daughters testified that defendant admitted responsibility for

breaking the windows, then pulled out a gun and fired a single

shot into the air. They further testified that defendant then

chased them and shot at them, with Rankin being shot twice

in the leg. They ran to a neighbor’s home for help and

defendant left the scene in a nearby vehicle. In separate

photographic lineups, all four witnesses identified defendant

as the shooter.

At trial, Detroit Police Officer Eric Richards testified that

Lativia’s car showed signs of a shooting—a shattered window,

a bullet hole near the trunk, and blood in the back seat. He

also testified that he visited Rankin in the hospital and

described his gunshot wounds.

Rankin died shortly before trial, although apparently not from

his wounds suffered in the instant shooting. The prosecution

therefore moved to admit Rankin’s preliminary examination

testimony at trial. Over defense objection, the trial court ruled

3

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that Rankin was unavailable pursuant to MRE 804(a)(4) and

admitted the testimony, which was read to the jury. This

included Rankin’s testimony that defendant shot him twice in

the leg.

People v. Borns, No. 318376, 2014 WL 7442251, at *1 (Mich. Ct. App. Dec.

30, 2014).

Also relevant to a full understanding of the events of that day is

James Rankin’s behavior earlier in the morning. Rankin testified that,

approximately 30 to 60 minutes before the shooting incident, he drove to

the Borns’ home where he knew Carlyssa Borns? (his ex-girlfriend and

the mother of his child) sometimes stayed because he suspected she was

involved in breaking the windows. ECF No. 23-2, PageID.1436, 1453,

1459, 1466. He drove there alone. Jd. Rankin drove to Borns’ house even

though he knew that Carlyssa had obtained a Personal Protection Order

(“PPO”) against him and he could not contact or come near her. Jd. at

PagelID.1451-52. He did not exit the car because he knew a crowd of

people were at the home based on the number of cars outside the house.

Id. at PageID.1468. Instead, he drove away. A short time later, Rankin

2 Carlyssa Borns is also referred to by the name Carlisha Harris in the

state court record. See e.g., ECF No. 23-7, PageID.1901, ECF No. 23-20,

PageID.3044. The Michigan Court of Appeals referred to her as Carlyssa

Borns and the Court will do so as well. Additionally, Petitioner and

multiple witnesses share the same surname. The Court will refer to any

Borns witnesses by their first names for clarity.

4

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came back to the Borns’ home with his mother and two sisters in one

vehicle and his aunt and two cousins in a second vehicle. Id. at

PageID.1469, 1471.

Melissa Borns, Petitioner’s sister, also testified about Rankin’s first

trip to her home on December 9, 2012. She claimed that at about 5:00

a.m. that morning Rankin threw a brick through the front window of her

home. ECF No. 28-7, PageID.1900-01. She knew Rankin was responsible

because she saw him walking back to his van. Jd. Her brother Carl

Barnes? ran out the front door and began shooting at Rankin. Jd. Rankin

got away. Id.

Melissa further testified that Rankin returned to the home a second

time that morning with his mother and two sisters. Jd. at PageID.1903.

Her brother Carl ran out of the house holding a gun. Jd. Moments later,

Melissa heard gunshots. Id. at PageID.1902. Petitioner was in the house

when she heard the gunshots. Id. Melissa did not see Petitioner with a

gun that day. Jd. at PageID.1903—04.

Following his sentencing, Petitioner filed an appeal in the Michigan

Court of Appeals through counsel claiming that the admission of

Rankin’s preliminary examination testimony violated his right of

3 Carl is referred to as both Carl Barnes and Carl Borns throughout the

state court record. The Court uses the last name “Barnes” because that

is the spelling used in his affidavit. See ECF No. 23-20, PageID.3080.

5

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confrontation and that insufficient evidence supported his assault with

intent to murder convictions. The Michigan Court of Appeals affirmed

Petitioner’s convictions. Borns, 2014 WL 7442251, at *1. The Michigan

Supreme Court denied leave to appeal. People v. Borns, 866 N.W.2d 454

(Mich. 2015).

Petitioner then filed a pro se motion for relief from judgment in the

trial court. See ECF No. 23-10. He raised claims concerning (1) defense

counsel’s failure to investigate, interview and present alibi witnesses; (2)

defense counsel’s failure to hire an expert on the unreliability of

eyewitness identification testimony; (8) in-court identifications which

Petitioner claims were tainted by unnecessarily suggestive pretrial

identification procedures; (4) appellate counsel’s failure to raise critical

issues; and, (5) the trial court’s obligation to consider evidence outside

the existing court record. See id. at PageID.2015-16. The trial court

denied the motion. ECF No. 23-12. The Michigan Court of Appeals denied

leave to appeal. People v. Borns, No. 338697 (Mich. Ct. App. Aug. 31,

2017).

Petitioner filed an application for leave to appeal in the Michigan

Supreme Court. While his application was pending, Petitioner filed a

habeas corpus petition in this Court. ECF No. 1. The Court stayed the

case pending conclusion of Petitioner’s appeal. ECF No. 10. On May 29,

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2018, the Michigan Supreme Court denied leave to appeal. People v.

Borns, 911 N.W.2d 715 (Mich. 2018).

Petitioner filed a second motion for relief from judgment in the trial

court arguing (1) that he is entitled to an evidentiary hearing; (2) that he

is actually innocent; and (38) that, but for counsel’s deficient

representation, no reasonable juror would have convicted him. ECF No.

23-15, PageID.2763. The trial court denied the motion. See ECF No. 23-

18. The Michigan Court of Appeals dismissed Petitioner’s application for

leave to appeal because he could not appeal the denial of a second motion

for relief from judgment. See People v. Borns, No. 350898 (Mich. Ct. App.

Jan 24, 2020).

Petitioner then filed an application for leave to appeal the court of

appeals’ order in the Michigan Supreme Court. The Michigan Supreme

Court directed the Wayne County Prosecuting Attorney to answer the

application. People v. Borns, No. 160998 (Mich. Sept. 8, 2020). After

receiving the answer, the Michigan Supreme Court denied the

application for leave to appeal “because the defendant has failed to meet

the burden of establishing entitlement to relief under MCR 6.508(D).”

People v. Borns, 957 N.W.2d 818 (Mich. 2021).

On March 31, 2022, this Court granted Petitioner's motion to

amend his petition and reopen the case. ECF No. 20. Respondent moved

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to dismiss the petition on the ground that it was not timely filed. ECF

No. 22. The Court denied the motion and directed Respondent to submit

an answer addressing the merits of Petitioner’s claims. ECF No. 25.

The petition, as amended, raises these claims:

I. The trial court abused its discretion denying appellant’s

request for a Mosden hearing based on the sworn

affidavit by Carl Barnes confessing to the charge against

appellant.

ll. Defendant was deprived of his Fifth and Fourteenth

Amendment right to due process and his Sixth

Amendment right to effective assistance of counsel

where new evidence reveals that trial counsel failed to

investigate and present at trial a known witness who

confessed to the charged offense and would establish his

actual innocence.

III. Defendant is entitled to remand to the circuit court for

resentencing under the provisions citing People v.

Lockridge, where it was determined other than the facts

of prior convictions, any facts that increases the penalty

for a crime beyond the prescribed statutory penalty

must be submitted to a jury and proved beyond a

reasonable doubt.

IV. The admission of complainant Rankin’s preliminary

examination testimony was error, because it failed to

meet the requirements of MCR 804(b)(1), and violated

the Confrontation Clause.

V. There was insufficient evidence to support his conviction

of assault with intent to murder complainant Rankin.

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VI. The defendant-appellant claims he was denied his right

to effective assistance of counsel where trial counsel: (A)

failed to investigate, interview and present alibi

witnesses; (B) failed to file necessary alibi notice; and

(C) lost the advantage of having the prosecutor disprove

an alibi defense.

VII. Defendant-appellant claims he was denied his right to

effective assistance of counsel where trial counsel failed

to file a motion for funds to hire a defense expert on

identification and present expert testimony on the

unreliability of eyewitness identification testimony

where the only evidence linking defendant to the crime

was eyewitness identification.

VIII. Defendant claims he was denied his right to a fair trial:

(A) due to unnecessarily suggestive photo show-up; and

(B) misconduct in connection with the show-ups; (C)

alternatively, trial counsel rendered ineffective

assistance of counsel when he failed to file a motion

seeking suppression of any in-court identification

deriving from the unnecessar[il]y suggestive photo

show-ups.

IX. Defendant-appellant was denied the effective assistance

of appellate counsel when he failed to raise critical

issues which have been outcome determinative on

appeal; minimally, a hearing must be ordered on this

point.

X. The trial court abused its discretion by ignoring offrecord evidence in ruling on the motion for relief from

judgment.

See ECF No. 15, PageID.974-76. Respondent has filed an answer arguing

that Borns’ third claim is untimely, his second, third, sixth, seventh, and

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eighth claims are procedurally defaulted, and that all his claims are

meritless. See ECF No. 26. Borns has filed a reply brief, ECF No. 27, and

a motion to expand the record, ECF No. 29.

II. Legal Standard

Habeas petitions filed under § 2254 are governed by the heightened

standard of review set forth in the Anti-Terrorism and Effective Death

Penalty Act (““AEDPA”). 28 U.S.C. § 2254. To obtain relief, habeas

petitioners who challenge “a matter ‘adjudicated on the merits in State

court’ [must] show that the relevant state court ‘decision’ (1) ‘was

contrary to, or involved an unreasonable application of, clearly

established Federal law,’ or (2) ‘was based on an _ unreasonable

determination of the facts in light of the evidence presented in the State

court proceedings.” Wilson v. Sellers, 548 U.S. 122, 124-25 (2018)

(quoting 28 U.S.C. § 2254(d)). The focus of this standard “is not whether

a federal court believes the state court’s determination was incorrect but

whether that determination was unreasonable—a substantially higher

threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “AEDPA thus

imposes a highly deferential standard for evaluating state-court rulings

and demands that state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) Gnternal citations and quotation

marks omitted).

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

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

correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.

86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)). Also, a state-court’s factual determinations are presumed correct

on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is “limited

to the record that was before the state court.” Cullen v. Pinholster, 563

U.S. 170, 181 (2011).

III. Discussion

A. Defense Counsel’s Failure to Investigate and Call

Witnesses (Claim VI)

The Court begins with Petitioner’s strongest claim: that counsel

was ineffective in failing to investigate or call witnesses. Petitioner’s

defense at trial was that Carl Barnes, not Petitioner, was the shooter.

Defense counsel presented a single witness to support this defense.

Petitioner identifies four additional witnesses who would have testified

in corroboration that Barnes was the shooter. Petitioner argues that,

despite knowing about these exculpatory witnesses, defense counsel did

not contact them, investigate their potential testimony, or call them to

testify. As explained below, the Court holds that counsel was deficient for

failing to investigate and call these witnesses and that there is a

reasonable probability that, but for counsel’s error, the result of the trial

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would have been different. Given the egregiousness of this lapse, and the

obvious prejudice the absence of this testimony caused, the Court must

conclude that the state court’s holding to the contrary is an unreasonable

application of clearly established Supreme Court precedent.

Respondent argues that this claim is procedurally defaulted. The

doctrine of procedural default applies when (1) a petitioner fails to comply

with a state procedural rule, (2) the rule is actually relied upon by the

state courts, and (8) the procedural rule is “adequate and independent.”

White v. Mitchell, 481 F.3d 517, 524 (6th Cir. 2006). To determine

whether a court relied on a state-law procedural default, the Court may

look through unexplained orders to the “last reasoned opinion.” Yist v.

Nunnemaker, 501 U.S. 797, 802 (1991). The last state court to issue a

reasoned opinion addressing this claim, the Michigan trial court, denied

relief under Mich. Ct. R. 6.508(D)(3). See ECF No. 23-12. Enforcement of

Rule 6.508(D)(8) is an independent and adequate state ground sufficient

to invoke the procedural default bar. Amos v. Renico, 683 F.3d 720, 733

(6th Cir. 2012). The Court, therefore, may consider the merits of this

claim only if Petitioner establishes either (1) cause for the default and

prejudice from the alleged constitutional violation, or (2) that failure to

consider the claims would result in a “fundamental miscarriage of

justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

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Petitioner asserts that his appellate counsel’s ineffectiveness

establishes cause to excuse the default. “To evaluate a claim of ineffective

assistance of appellate counsel ... the court must assess the strength of

the claim that counsel failed to raise.” Henness v. Bagley, 644 F.3d 308,

317 (6th Cir. 2011). The Court, therefore, begins with a thorough review

of trial counsel’s performance and then proceeds to consider whether

appellate counsel was ineffective in failing to raise the claim.

1. Strickland v. Washington

An ineffective assistance of counsel claim has two components.

Strickland v. Washington, 466 U.S. 668 (1984). A petitioner must show

that counsel’s performance was deficient, and that the deficiency

prejudiced the defense. Jd. at 687. To establish deficient representation,

a petitioner must demonstrate that counsel’s representation “fell below

an objective standard of reasonableness.” Id. at 688. To establish

prejudice, a petitioner must show that, but for the constitutionally

deficient representation, there is a “reasonable probability” that the

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

The Sixth Amendment guarantees a defendant the right to effective

assistance of counsel on the first appeal by right. See Evitts v. Lucey, 469

U.S. 387, 396-97 (1985). Appellate “[c]ounsel’s performance is strongly

presumed to be effective.” McFarland v. Yukins, 356 F.3d 688, 710 (6th

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Cir. 2004) (quoting Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. 2000)).

A petitioner does not have a constitutional right to have appellate counsel

raise every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745,

754 (1983). “[A]ppellate counsel who files a merits brief need not (and

should not) raise every nonfrivolous claim, but rather may select from

among them in order to maximize the likelihood of success on appeal.”

Smith v. Robbins, 528 U.S. 259, 288 (2000). “If a reasonable probability

exists that the defendant would have prevailed had the claim been raised

on appeal, the court still must consider whether the claim’s merit was so

compelling that the failure to raise it amounted to ineffective assistance

of appellate counsel.” Henness v. Bagley, 644 F.3d 307, 317 (6th Cir.

2011).

2. The Uncalled Witnesses

Petitioner maintains that defense counsel failed to investigate and

call four witnesses who would have testified that he was not the shooter.

In support of this claim, he submits the affidavits of Othello Nails,

Patricia Borns, Lashanti Bovan, and Gregg Marshall. The affidavits

provide the following relevant statements:

4 Petitioner submits handwritten affidavits executed on January 7, 2014,

by Nails, Marshall, and Patricia Borns. ECF No. 1, PageID.83, 87-88,

96-99. He also submits typed affidavits signed by each of these three

witnesses in September 2016. Id. at PageID.81—82, 85-86, 93-95. It

appears that the witnesses executed typed affidavits to provide more

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Othello Nails

Othello Nails states that he was at the Borns’ house on December

9, 2012, to attend a birthday party for twin sisters Patricia and Melissa

Borns. ECF No. 1, PageID.81. Early in the morning, he was awakened by

a loud noise and gunshots. Jd. When the shooting stopped, Carl Barnes

told Nails that James Rankin threw a brick through the window and that

he (Carl) had run outside and shot at Rankin before Rankin ran away.

Id. Petitioner came to the house later that morning. Jd. Petitioner, Gregg

Marshall, and Nails left the home to get supplies to repair the window.

Id. Nails described what happened when they returned from the store:

When we got back to the house and was about to go inside, I

notice[d] four car[] loads of people, both women and men,

drive past the house real slow and one of them yelled out the

car window: “Where is Carlisha?” I went inside the house and

let everyone know that three cars full of people were outside

asking for Carlisha. Earl (i.e. Robert Borns) said he was going

down there to tell them Carlisha did not live here. He jumped

up and went outside walking down the street the same way

the four cars full of people went. Everyone in the house went

outside on the front po[r]ch but I continued walking out to the

front yard, so that, I would be able to see down the street

where Earl went. I notice Earl walking down the street

toward the parked cars, when all of a sudden James and some

women started jumping out of the cars yelling at him. I then

formal statements. Each witness’s typed affidavit is substantively

consistent with, if not identical to, his or her handwritten statement.

Petitioner submits a single typed affidavit by Lashanti Bovan executed

on September 16, 2016. Id. at PageID.90-91.

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saw James pull out a gun and sho[o]t it, and ... Carl shot back

at him. I did not see [Petitioner] with a gun or shooting a gun

at James on December 9, 2012.

Id. at PageID.81-82.

Nails stated he was willing to testify but trial counsel never

contacted him. Id.

Gregg Marshall

In his affidavit, Gregg Marshall, a friend of Melissa and Patricia

Borns, stated that, on the day of the shooting, when he saw Rankin

approaching the house, someone yelled “they got a gun.” ECF No. 1,

PagelD.85. He, Petitioner, Melissa, and Patricia Borns, fled into the

house. Jd. He did not see Petitioner in possession of a gun or shooting at

anyone. Jd. He was never contacted by defense or appellate counsel. Jd.

at PageID.86.

Patricia Borns

Patricia Borns, Petitioner and Carl Barnes’ sister, stated that, at

approximately 5:30 a.m. on December 9, 2012, she was sleeping on the

living room sofa when she was awakened by a brick crashing through her

dining room window. ECF NO. 1, PageID.93. She and her brother Carl

Barnes ran to the front door. Jd. She saw James Rankin walking toward

his van. Id. Carl began shooting as Rankin was driving away. Id.

At approximately 9:00 a.m., Carl yelled “They back!” “Take Cover!”

Id. Patricia, Carl, Melissa, Robert Earl Borns, Othello Nails, and Gregg

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Marshall ran onto the front porch. Jd. Patricia saw James Rankin driving

down the street with his mother and two sisters in the car with him and

two cars following behind. Jd.at PageID.94. People were getting out of the

cars announcing that they were looking for Carlisha Harris. Id. Robert

Ear] Borns told them that Carlisha did not live there. Id. Rankin walked

toward the home and placed a hand under his hoodie. Jd. Someone yelled,

“He got a gun.” Jd. Patricia ran back into the house just as her brother

Carl Barnes was running out of the house with a gun in his hand. Jd. She

got on the floor and heard gunshots. Jd. She saw Petitioner attempting

to get outside but Melissa would not allow him to exit the house. Id.

Patricia did not see Petitioner with a weapon on that date. Id. Patricia

was never contacted by defense counsel. Id.

Lashanti Bovan

Lashanti Bovan, the niece of Petitioner and Carl Barnes, stated

that James Rankin broke the front window of her Aunt Melissa Borns’

home at approximately 6:00 a.m. on December 9, 2012. ECF No. 1,

PageID.90. Carl Barnes ran out of the home and began shooting at

Rankin. Jd. Rankin and his family returned to the street later that

morning. Jd. Bovan’s uncle, Robert Earl Borns, walked down the street

to where Rankin and his family had parked. Jd. When Rankin pulled out

a gun, Carl Barnes began to shoot toward Rankin. Jd. Bovan’s uncles,

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Petitioner and Robert Earl, retreated to the safety of the house while Carl

continued to shoot at Rankin. Jd. Petitioner did not shoot Rankin. Id. at

PageID.91. Petitioner told Bovan that she would be contacted by defense

counsel, but she was not. Id.

3. State Court Decision

The last reasoned decision addressing the merits of this claim was

the state trial court which found no error in counsel’s failure to call these

witnesses.® The trial court reasoned:

Defendant admits counsel did call Melissa Borns, who |

testified at trial that defendant wasn’t the shooter, so, the four

non-testifying witnesses’ testimony would have _ been

redundant. Moreover, while it’s true if an alibi is accepted by

the jury, a defendant cannot be convicted. This does not mean,

however, that the burden of proving the defense is upon the

defendant; to the contrary, it is the duty of the prosecution to

show beyond a reasonable doubt that the defendant did

commit the crime and that, therefore, the defendant was at

the scene of the crime at the time it was committed. Sullivan

v. People, 31 Mich. 1 (1875); People v. Qwens, 3 Mich. App.

707, 712, 143 N.W.2d 574, 576-77 (1966). Trial counsel may

exclude relevant witnesses in order to avoid needless delay, or

5 Although the trial court procedurally defaulted this claim under

Michigan Court Rule 6.508(D)(8), the court also denied this claim on the

merits. Thus, AEDPA’s deferential standard of review applies to the trial

court’s opinion. See Moritz v. Lafler, 525 F. App’x 277, 284 (6th Cir. 2013)

(“[A]s long as the state court put forward a merits-based ground for

denying post-conviction relief, its mentioning of procedural default as an

alternative or even primary ground for denying relief does not preclude

AEDPA deference.”).

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testimony, which may mislead the jury. MRE 403.2 It appears

the jury simply believed the testimony of the Complainants

over that of the defendant. Therefore, after reviewing

defendants’ brief, this Court determines defendant is unable

to demonstrate ineffective assistance of counsel.

2 Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the members

[of the jury], or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence. MRE

403.

ECF No. 23-12, PageID.2078.

4, Performance Prong

An attorney’s performance is deficient if “counsel’s representation

fell below an objective standard of reasonableness.” Strickland, 466 U.S.

at 688. Here, the state court’s decision that counsel’s performance was

not deficient is an unreasonable application of Strickland.

The trial court held that counsel’s exclusion of these witnesses was

a reasonable decision to “exclude relevant witnesses in order to avoid

needless delay, or testimony, which may mislead the jury.” ECF No. 23-

12, PageID.2078. In so holding, the trial court ignored defense counsel’s

obligation to investigate these witnesses before deciding to exclude them.

There is no indication that counsel did so. Each of the affidavits

submitted by the witnesses clearly states that they had no contact with

defense counsel.

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“[A] lawyer’s Strickland duty ‘includes the obligation to investigate

all witnesses who may have information concerning his or her client’s

guilt or innocence.” Ramonez v. Berghuis, 490 F.3d 482, 487 (6th Cir.

2007) (quoting Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005)).6 “[T]he

investigation leading to the choice of a so-called trial strategy must itself

have been reasonably conducted lest the ‘strategic’ choice erected upon it

rest on a rotten foundation.” Id. at 488.

A thorough investigation of the witnesses’ potential testimony

would have revealed that the additional evidence they offered was not

redundant or a waste of time. A review of their written statements shows

that their statements addressed a critical and disputed issue. “The mere

fact that one other witness ... has testified to a particular fact ... does not

399

render other testimony on that point ‘cumulative.” Vasquez v. Jones, 496

F.3d 564, 576 (6th Cir. 2007). See also English v. Romanowski, 602 F.3d

714, 726-27 (6th Cir. 2010) (““Undoubtedly, the testimony of a second

person to corroborate the Defendant’s version of the events would not

6 While circuit precedent does not constitute “clearly established Federal

law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), Sixth

Circuit precedents are instructive in determining whether a state court

decision reasonably applied existing Supreme Court case law. Stermer v.

Warren, 959 F.3d 704, 727 nn.3, 4 (6th Cir. 2020) (holding that a circuit

court decision evaluating a habeas corpus petition under AEDPA may be

cited where the decision provides a “helpful discussion of Supreme Court

precedent”) (citing Wiggins v. Smith, 539 U.S. 510, 522 (2003).

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have been cumulative, but rather could have critically added to the

strength of the defense’s case.”).

The prosecution’s case itself demonstrates the value of multiple

witnesses. In its case in chief, the prosecution called four identification

witnesses, a strategy that speaks for itself—four witnesses testifying to

the same observation are more persuasive than one. While one witness

may be mistaken, four are less likely to be so. A prosecutor or defense

counsel may reasonably decline to present multiple witnesses on a minor

or tangential issue, but the uncalled witnesses in this case could have

testified to the single most crucial issue in this case—the identity of the

shooter.

There is no reasonable justification for defense counsel’s failure to

investigate or present four witnesses who would have directly supported

the defense that Carl Barnes—not Petitioner—was the shooter. No

fairminded jurist could find that counsel satisfied his duty “to conduct a

prompt investigation” and “to explore all avenues leading to facts

relevant to the merits of the case.” Rompilla v. Beard, 545 U.S. 374, 387

(2005). The state court’s holding to the contrary unreasonably applied

Strickland’s performance prong.

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5. Prejudice Prong

Petitioner has shown that counsel’s performance was deficient and

that the state court’s contrary conclusion was unreasonable. To satisfy

Strickland’s second prong, he must show “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

The Court begins with the trial court’s holding that Petitioner was

not prejudiced because the jury “simply believed the testimony of the

Complainants over that of the defendant.”” ECF No. 23-12, PageID.2078.

Unfortunately, this statement betrays a fundamental misunderstanding

of the prejudice analysis. The question is not whether the jury in fact

believed the prosecution’s witnesses instead of those offered by the

defense; rather, Strickland requires an inquiry into whether there is a

reasonable probability that the jury would have had a reasonable doubt

if the defense had offered evidence that counsel failed to investigate or

present. Petitioner has met this standard.

Petitioner’s trial was a credibility contest between the prosecution’s

eyewitnesses and the defense’s single witness. No other evidence

7 Petitioner did not testify. So the Court assumes the trial court’s

reference to defendant’s testimony is a reference to the defense as a

whole.

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established Petitioner’s identity as the shooter. The testimony of four

additional defense witnesses uniformly identifying someone else as the

shooter would have substantially strengthened the defense. See Hewitt-

El v. Burgess, 53 F.4th 969, 982 (6th Cir. 2022) (finding a strong

likelihood of a different result if defense counsel had called two additional

witnesses to corroborate defendant’s testimony because that “would have

pitted three [defense] witnesses against one [prosecution witness] in a

pure credibility contest”).

While courts may regard exculpatory affidavits offered after

conviction with skepticism, the affidavits submitted by Petitioner bear

certain earmarks of reliability. Allen v. Yukins, 366 F.3d 396, 405 (6th

Cir. 2004). First, these are not recanting affidavits by trial witnesses

which courts commonly regard with “great suspicion.” Brooks uv.

Tennessee, 626 F.3d 878, 897 (6th Cir. 2010). There is no record evidence

that the affiants ever wavered from their statements or testified

inconsistently.

Second, three of the four affidavits were executed within five

months of Petitioner's sentencing and almost one year before the

Michigan Court of Appeals affirmed Petitioner’s convictions on direct

appeal. Thus, they fall outside the “cloud of skepticism” cast over

affidavits executed long after a conviction is final. Hubbard v. Rewerts,

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98 F.4th 736, 750 (6th Cir. 2024), cert. denied, No. 24-6810, 2025 WL

581742 (Feb. 24, 2025). See also Herrera v. Collins, 506 U.S. 390, 423

(1993) (O’Connor, J., concurring) (holding that “11th hour” affidavits

produced with “no reasonable explanation” for delay should be “treated

with a fair degree of skepticism”); Taylor v. Illinois, 484 U.S. 400, 414

(1988) (“[I]t is ... reasonable to presume that there is something suspect

about a defense witness who is not identified until after the 11th hour

has passed”).

Third, Petitioner doggedly attempted to file the affidavits with the

Michigan Court of Appeals on direct review but encountered multiple

obstacles.®

8 The following summary illustrates Petitioner’s efforts:

After appointed appellate counsel filed an appeal brief, Petitioner sent a

letter to the Michigan Court of Appeals requesting an extension of time

to file a pro per supplemental brief (a “Standard 4 brief’). ECF No. 9-8,

PageID.674. Petitioner explained to the court:

[M]y time is running out on my standard 4 brief .... I have no

idea what to do next so I’m sending a motion for extension [of]

time ... to you ... I already mailed my attorney copies of the

motion for extension of time. I’m at my last days and I’m

hoping for a chance to put in my issue.

ECF No. 9-8, PageID.678. Petitioner also later filed a motion for

enlargement of time. Jd. at PageID.679.

On March 7, 2014, the Michigan Court of Appeals returned the letter and

motion without filing because, when a party is represented by appointed

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Fourth, the affidavits do not raise suspicions often associated with

family members’ exculpatory testimony. The Sixth Circuit has held that

“it is within reason to assume that [a witness’s] credibility would be

diminished” before the jury if the witness had a close relationship with

the defendant, Ballinger v. Prelesnik, 709 F.3d 558, 563 (6th Cir. 2018),

because they “have a personal stake in exonerating” the defendant.

McCray v. Vasbinder, 499 F.3d 568, 573 (6th Cir. 2007). Here, the

witnesses are not simply exculpating a family member in order to point

the finger at a third party, they are incriminating another family

member. Indeed, Lashanti Bovan’s affidavit explains the challenge: “It

counsel, appointed counsel must file a motion for extension of time. Jd. at

PagelID.685.

Petitioner then retained counsel, Wright W. Blake, who, on March 18,

2014, filed a motion to extend the briefing schedule. Jd. at PageID.688—

89. The court of appeals returned the motion without filing because Blake

was not the attorney of record. Jd. at PageID.691. The court of appeals

rejected Blake’s second motion to extend the briefing schedule because

the motion fee was unpaid and the motion was not filed in accordance

with state court rules. Id. at PageID.714.

Petitioner then submitted a motion to remand for an evidentiary hearing

regarding counsel’s failure to contact and call four exculpatory witnesses.

Id. at PageID.699—712. On April 11, 2014, the Michigan Court of Appeals

returned the motion because only a party represented by appointed

counsel may file a Standard 4 brief. Jd. at PageID.715. The Michigan

Court of Appeals’ publicly available docket shows that retained counsel

never filed a brief on Petitioner’s behalf.

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has been very difficult for me to have to come forward and testify against

one of my uncles (i.e. Carl Lee Barnes) who shot James, while testifying

for my other uncle (i.e. Clarence Borns), who did not sho[o]t James.” ECF

No.1, PageID.91.

To be sure, the testimony of Petitioner’s potential alibi witnesses

would not have been without inconsistencies or weaknesses. But

Petitioner does not have to establish that the jury would have believed

the witnesses. The jury may have been unpersuaded by the witnesses

after hearing their testimony and judging their credibility, but “there

certainly remained a reasonable probability that the jury would not have”

discredited the potential witnesses and that is sufficient to show

prejudice under Strickland. Ramonez, 490 F.3d at 491 (emphasis added).

The impact of defense counsel’s error must be considered in the

context of the totality of the evidence presented. See, e.g., Strickland, 466

U.S. at 696 (“[A] verdict or conclusion only weakly supported by the

record is more likely to have been affected by errors than one with

overwhelming record support.”). The credibility of the identification

witnesses was central to this case. There is a reasonable probability that

the corroboration of Melissa Borns’ testimony by four additional

witnesses could have influenced the jury.

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Counsel failed to investigate available witnesses whose testimony

would have corroborated that of the lone defense witness in a case

dependent entirely on credibility determinations. Nothing in the record

suggests that counsel made a reasonable tactical decision not to interview

these witnesses. No physical evidence showed the Petitioner was the

shooter, so the testimony of the prosecution’s eyewitnesses was the most

important evidence presented. If four additional witnesses had supported

Melissa Borns’ testimony that Clarence Barnes was the shooter, there is

little to no question that such evidence would create a reasonable

probability that the jury could find reasonable doubt as to Petitioner’s

guilt. Petitioner has shown both deficient performance and prejudice

under Strickland. Under the applicable standard, the Court finds that

any truly fairminded jurist could not fail to agree with this conclusion.

Consequently, the Michigan Court of Appeals’ decision to the contrary

was an unreasonable application of Supreme Court precedent.

6. Appellate Counsel’s Performance

The Court returns to the question whether appellate counsel was

deficient for failing to raise this claim. When ineffective assistance of

counsel is asserted as cause to excuse a procedural default, the ineffective

assistance claim is reviewed de novo. Chase v. MaCauley, 971 F.3d 582,

591-92 (6th Cir. 2020).

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Relevant to an assessment of appellate counsel’s performance is the

strength of the claims counsel actually raised on appeal. First, appellate

counsel argued that the trial court violated Petitioner's Sixth

Amendment right of confrontation by admitting the preliminary

examination testimony of James Rankin who died prior to trial. Counsel

argued that Petitioner lacked the opportunity and similar motive to

develop Rankin’s testimony during the preliminary examination. See

ECF No. 9-8, PageID.662-67. While the Sixth Circuit has stated that

there is “room for reasonable debate” on this issue, Al-Timimi v. Jackson,

379 F. App’x 485, 437 (6th Cir. 2010), Michigan appellate courts have

consistently held that a preliminary examination provides sufficient

opportunity for examination to satisfy the Confrontation Clause. See e.g.

People v. Burney, No. 313252, 2014 WL 1233947, *3 (Mich. Ct. App. Mar.

25, 2014); People v. Nelson, No. 3012538, 2014 WL 783464, *3 (Mich. Ct.

App. Feb. 25, 2014); People v. McCall, No. 306336, 2012 WL 4373282, *3—

4 (Mich. Ct. App. Sept. 25, 2012). Appellate counsel presented no

argument to distinguish Petitioner’s case from the long line of state court

cases denying relief on this claim.

Second, appellate counsel argued that the prosecution failed to

present sufficient evidence to prove the intent element of assault with

intent to murder beyond a reasonable doubt. Counsel argued:

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There is no direct evidence Appellant shot Rankin with an

actual intent to kill. Appellant was therefore “made to suffer

the onus of a criminal conviction” without sufficient proof. See

Jackson, 443 U.S. at 316-18. The prosecution’s evidence, even

when viewed in a light most favorable to the prosecution,

failed to establish Appellant’s guilt. No rational trier of fact

could have found guilt beyond a reasonable doubt. The

evidence was insufficient as a matter of law to support a

finding of intent to murder. He was unjustly convicted of a

crime which he did not commit. Accordingly, Appellant’s

assault with intent to murder conviction must be reversed or,

minimally, reduced to assault with intent to do great bodily

harm less than murder.

ECF No. 9-8, PageID.671.

The flaw in this argument is that Michigan law does not require

“direct evidence” of the “actual intent to kill.” In fact, Michigan caselaw

expressly provides that “the actual-intent-to-kill element does not need

999

to be proved by ‘direct, positive, or independent evidence.” Hudson v.

Lafler, 421 F. App’x 619, 626 (6th Cir. 2011) (quoting People v. Taylor,

375 N.W.2d 1, 7 (1985)). Moreover, under Michigan law, the intent

element may be inferred from “all the facts in evidence, including use of

a deadly weapon, taking aim at a victim, [and] injury to the victim.”

People v. Everett, 899 N.W.2d 94, 107 n.10 (quotation omitted).

Here, it was undisputed at trial that someone fired a gun at Rankin.

The disputed question was the identity of the shooter, which makes this

claim significantly weaker than Petitioner’s ineffective assistance of

counsel claim. Appellate counsel was constitutionally deficient for failing

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to raise the ineffective assistance claim, establishing cause to excuse the

default.

The Court now turns to the question of prejudice, whether there

existed a “reasonable probability” that the outcome of Petitioner’s direct

appeal would have been different. Chase, 971 F.3d at 595. If there is a

reasonable probability that the court of appeals would have found that

defense counsel’s failure to investigate and call these witnesses

“undermined confidence in the verdict,” then Petitioner was prejudiced

by counsel’s failure to raise the issue. Hewitt-El v. Burgess, 53 F.4th 969,

979 (6th Cir. 2022). The prosecution’s case rested on the credibility of four

eyewitnesses. Given the centrality of the credibility balancing function of

the jury in a case based entirely on witness testimony, counsel’s failure

to investigate and call four witnesses who would have contradicted the

prosecution’s witnesses undermined confidence in the verdict. That

excuses the default of this claim.

For these reasons, the Court will GRANT Petitioner a conditional

writ of habeas corpus because the state court’s decision denying his

ineffective assistance of trial claim was an unreasonable application of

clearly established Supreme Court precedent.

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