Petition for Writ of Certiorari — Scott v. Elo

Supreme Court, U.S.

rt Lew

02 928DEC4 2002

ng OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

CORTEZ TRAWETS SCOTT,

Petitioner

-v-

FRANK ELO,

ao —_—_—_ -——

PETITION FOR A WRIT OF CERTIORARI

JAMES STERLING LAWRENCE (P33664)

Attorney for Petitioner Scott

717 Penobscot Building

Detroit, MI 48226

(313) 965-4189

QUESTIONS PRESENTED

Petitioner Cortez Scott was convicted at a jury trial of

first degree murder and possession of a firearm during a

felony. Habeas Corpus was denied, and the Sixth Circuit

affirmed in a published decision. The questions presented

are:

QUESTION 1: WHETHER THE STATE DENIED

PETITIONER DUE PROCESS OF LAW BY FAILING TO

PROVIDE A TRANSCRIPT OF CRITICAL PORTIONS

OF THE TRIAL.

QUESTION 2: WHETHER THE STATE COURT

PROCEDURE TO "SETTLE THE RECORD" FOR

APPEAL AMOUNTS TO A FRAUD AND DENIAL OF

DUE PROCESS.

QUESTION 3: WHETHER IT DENIES DUE PROCESS

TO PRESUME FROM THE LACK OF TRANSCRIPT

THAT IT CONTAINED NO OBJECTIONS TO THE

PROSECUTOR'S ARGUMENT, AND THAT IT

CONTAINED NO LEGAL ERRORS.

QUESTION 4: WHETHER THE PROSECUTOR IN HIS

ARGUMENTS SHIFTED THE BURDEN OF PROOF.

QUESTION 5: WHERE THE STATE COURTS

ROUTINELY GRANT RELIEF FOR THIS ERROR

WITHOUT REQUIRING OBJECTION, WHETHER IT

WAS A VIOLATION OF JOHNSON V. MISSISSIPPI, 486

U.S. 578 (1988) FOR THE FEDERAL COURT TO DENY

REVIEW WHERE THIS TIME THE STATE COURTS

RELIED ON LACK OF OBJECTION.

QUESTION 6: WHETHER THE EVIDENCE WAS

INSUFFICIENT TO CONVICT.

QUESTION 7: WHETHER PETITIONER WAS DENIED

DUE PROCESS BY THE FAILURE OF THE JUDGE TO

INSTRUCT ON THE LESSER OFFENSE OF

INVOLUNTARY MANSLAUGHTER.

QUESTION _ 8: WHETHER PETITIONER WAS

PREJUDICED BY INEFFECTIVE ASSISTANCE OF

COUNSEL THAT REQUESTED NO INSTRUCTIONS TO

THE JURY ON ANY OF THE PETITIONER'S

DEFENSES.

QUESTION 9: WHETHER PETITIONER WAS

PREJUDICED BY THE CUMULATIVE EFFECT OF THE

ERRORS.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

INDEX OF AUTHORITIES

OPINIONS BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

STATEMENT OF PROCEEDINGS

STATEMENT OF FACTS

REASONS FOR GRANTING THE WRIT

QUESTION I

QUESTION II

QUESTION III

QUESTION I'V

QUESTION V

QUESTION VI

QUESTION VII

QUESTION VIII

QUESTION Ix

CONCLUSION

APPENDIX

Sixth Circuit ruling, 9/6/02

United States District Court ruling, 3/8/01

_ a

=

“Nn n ff + FPN NV NV

A21

IN F

Cases

Beck v. Alabama, 447 U.S. 625; 100 S.Ct. 2382;

65 L.Ed. 2d 392 (1980) 22, 23, 24

Bruno v. Rushen, 721 F.2d 1193 (9th Cir. 1983) 17

Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988) 27

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) 17

Ferrazza v. Mintzes, 735 F.2d 967 (6th Cir. 1985) 22

Ford v. Georgia, 498 U.S. 411; 111 S.Ct. 850;

112 L.Ed.2d 935 (1991) 18

Francis v. Franklin, 471 U.S. 307; 105 S.Ct.

1965; 85 L.Ed.2d 344 (1985) 16

Hardy v. United States, 375 U.S. 277; 84

S.Ct. 424; 11 L.Ed.2d 331 (1964) 11

Herbert v. Louisiana, 272 U.S. 312; 47

S.Ct. 103; 71 L.Ed.2d 270 (1926) 27

Jackson v. Virginia, 443 U.S. 307; 99 S.Ct.

2781; 61 L.Ed.2d 560 (1979) 19

Johnson v. Mississippi, 486 U.S. 578; 108 S.Ct.

1981; 100 L.Ed.2d 575 (1988) 18, 23

Keeble v. United States, 412 U.S. 205; 93 S.Ct.

1993; 36 L.Ed. 2d 844 (1973) 22, 23

Landers v. Rees, 782 F.2d 1042 (6th Cir. 1985) 26

Lansing Charter Township v Bondy, 408 Mich

854 (1980) 14

-Lucas v. O'Dea, 169 F.3d 1028 (6th Cir. 1999) 26

Malley v. Manson, 547 F.2d 25 (2nd Cir. 1976) 17

Mayer v. Chicago, 414 U.S. 189; 92 S.Ct. 410;

39 L.Ed.2d 378 (1978) 11, 12

Mullaney v. Wilbur, 421 U.S. 684; 95 S.Ct.

1881; 44 L.Ed.2d 508 (1975) 16

Nevers v. Killinger, 169 F.3d 352 (6th Cir. 1999) 21, 25

Patterson v. New York, 432 U.S. 197, 97 S.Ct.

2319 (1977)

People v. Auer, 393 Mich. 667 (1975)

People v. Austin, 76 Mich. App. 455 (1977)

People v. Chamblis, 395 Mich. 408 (1975)

People v. Coffman, 45 Mich. App. 180 (1973)

People v. Ellison, 133 Mich. App. 814 (1984)

People v. Frechette, 380 Mich. 64 (1968)

People v. Garcia, 398 Mich. 250 (1976)

People v. Heath, 80 Mich. App. 185 (1977)

People v. Hess, 214 Mich. App. 33 (1996)

People v. Holbrook, 154 Mich. App. 508 (1986)

People v. Humphreys, 24 Mich. App. 411 (1970)

People v. Jones, 419 Mich. 577 (1984)

People v. Knolton, 86 Mich. App. 424 (1978)

People v-Lange, 90 Mich. 454 (1892) ©

People v. Lynch, 47 Mich. App. 8 (1973)

People v. Martin, 130 Mich. App. 609 (1983)

People v. Martin, 392 Mich. 553 (1974)

People v. Reed, 393 Mich. 342 (1974)

People v. Richardson, 409 Mich. 126 (1980)

People v. Rone (on 2nd remand), 109 Mich. App.

702 (1981) ~

People v. Rosales, 160 Mich. App. 304 (1987)

People v. Shannon, 88 Mich. App. 138 (1979)

People v. Sterling, 154 Mich. App. 223 (1986)

People v. Strong, 404 Mich. 357 (1978)

People v. Tarpley, 41 Mich. App.-227 (1972)

People v. Tillman, 406 Mich. 898 (1979)

People v. Townes, 391 Mich. 578 (1974)

People v. Wallace, 160 Mich. App. 1 (1987) -

People v. Woods, 416 Mich. 581 (1982)

People v. Wright, 408 Mich. 1 (1980)

Spaziano v. Florida, 468 U.S. 447 (1984)

18,

17, 18,

22

27

16

18

Speiser v. Randall, 357 U.S. 513; 78 S.Ct. 1332;

vi

2 L.Ed.2d 1460 (1958) 17

Strickland v. Washington, 466 U.S. 668; 104 S.Ct.

2052; 80 L.Ed.2d 674 (1984) 27

United States v. Harris, 523 F.2d 172 (6th Cir. 1973) 17

United States v. Crutchfield, 547 F.2d 496 (9th Cir.

1977) 22, 23

United States v. Jones, 482 F.2d 747 (D.C. Cir. 1973) 27

United States v. McLain, 823 F.2d 1457 (11th Cir. 1987) 17

United States v. Smith, 500 F.2d 293 (6th Cir. 1974) 16, 19

Vujosevic v. Rafferty, 844 F.2d 1023 (3d Cir.1988) 22

Williams v. Taylor, 529 U.S. 362; 120 S.Ct.

1495; 146 L.Ed.2d 389 (2000) 8

Constitutional Provisions

Const. 1963, Art 1, §20 12

U.S. Const., Amend. VI 2

U.S. Const., Amend. XIV 11

Statutes

28 U.S.C. § 2254(d)(2) 21; 25

28 U.S.C. §1254 2

M.C.L. 750.321 a.

Rules

M.C.R. 8.108 | s

M.R.E. 103(d) 18

No.

IN THE SUPREME COURT OF THE UNITED STATES

CORTEZ TRAWETS SCOTT,

Petitioner

-v-

FRANK ELO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

CORTEZ T. SCOTT, Petitioner, by and through his

attorney, James S. Lawrence, moves this Court to issue a

Writ of Certiorari to review the ruling of the Sixth Circuit

Court of Appeals of September 6, 2002, affirming the denial

of a Petition for Habeas Corpus.

2 Petition for Writ of Certiorari

OPINIONS BELOW

The Appendix includes the published opinion of the

Sixth Circuit Court of Appeals of September 6, 2002 and the

opinion of the United States District Court of March 8, 2001.

STATEMENT OF JURISDICTION.

This case began as a criminal prosecution in Genesee

County, Michigan, Circuit Court. The original judgment was

entered December 20, 1994. The first opinion of the

Michigan Court of Appeals was issued January 21, 1997.

The Michigan Supreme Court remanded for more hearings on

February 3, 1998. The Michigan Court of Appeals affirmed

again on August 18, 1998. The final judgment of the

Michigan Supreme Court was issued April 27, 1999. The

Judgment of the United States District Court was March 8,

2001. The ruling of the Sixth Circuit Court of Appeals was

issued September 6, 2002. This Court has jurisdiction under

28 U.S.C. §1254 to review the final judgment of the United

States Court of Appeals.

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States

Constitution provides:

Petition for Writ of Certiorari 3

"In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel

for his defence."

The Fourteenth Amendment to the United States

Constitution provides:

"No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life, liberty

or property without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

4 Petition for Writ of Certiorari

STATEMENT OF THE CASE

Statement of Proceedings

Petitioner Cortez Scott, then 17, was convicted of first

degree murder and possession of a firearm during a felony in a

jury trial in Genesee County Circuit Court. On December 20,

1994, Judge Earl Borradaile sentenced Petitioner to prison for

life plus 2 years.

An appeal was taken to the Michigan Court of

Appeals, which affirmed January 21, 1997. On February 3,

1998, the Michigan Supreme Court remanded the case to the

trial court for a hearing about a missing portion of transcript.

456 Mich 931 (1998). After remand, the Court of Appeals

on August 18, 1998 again found no error requiring reversal .

The Michigan Supreme Court denied leave to appeal on April

27, 1999.

_ A Petition for Habeas Corpus was filed within 1 year of

that date. This was denied by opinion and order of the Hon.

Victoria A. Roberts of the United States District Court,

Eastern District of Michigan of March 8, 2001. The Sixth

Circuit Court of Appeals affirmed in a published opinion of

September 6, 2002.

Statement of Facts

James (Terry) Crain testified that he was in the

Petition for Writ of Certiorari 5

passenger seat of a car driven by Tyrone Williams, with

Petitioner Scott in the back seat. As they were pulling off

from a stop sign, Crain heard a shot. He saw Williams slump.

Crain jumped out of the car and ran as Petitioner grabbed the

steering wheel from the back seat. (T 107-110). All had been

drinking beer and smoking marijuana. (T 99, 126-130).

Crain also testified that there was another occasion

when Petitioner and Tyrone Williams had an argument over

some stereo speakers. (T 136-137).

Off. Richard Vickrey testified that he got a call on

February 16, 1994 at 11:09 p.m., that he went to Holmes

Junior High School on Oxley Drive, and that he saw a body

on the ground in a parking lot with a bullet hole to the right

forehead of the deceased. He found some money and a

cassette tape on the ground nearby. (T 12-17).

Tyrone Williams was the next door neighbor of

Petitioner. (T 154). After the shooting, Thaddous Carl

Williams, father of Tyrone, had Petitioner in his car, a

Cadillac. (T 120). According to Mr. Crain, an angry group of

men confronted Petitioner, and pulled him out of the car. (T

146). Crain personally slapped Petitioner. (T 122). When

police arrived, they found 5 or 6 men yelling at Petitioner. (T

24).

Dr. Douglas Condon testified that Tyrone Williams died

from being shot. (T 71).

Sgt. Thomas Korabik testified that after Petitioner Scott

6 Petition for Writ of Certiorari

was taken away from the mob, he was questioned and

complained about Williams always taking his things. Then,

on the night in question, Petitioner had paid Williams $35

that Williams was to use to buy marijuana for Petitioner.

Williams kept the money. (T 182-183). Sgt. Korabik

testified that Petitioner said he pulled out a gun, said "What's

up now," and shot Williams. Terry (James Crain) jumped

from the car and ran. Petitioner drove to Holmes School and

removed the deceased from the car. (T 184-185). Petitioner

said that the gun went off when Williams grabbed his hand.

(T 191).

Petition for Writ of Certiorari 7

REASONS FOR GRANTING THE, WRIT

‘QUESTION 1: WHETHER THE STATE DENIED

PETITIONER DUE PROCESS OF LAW BY FAILING TO

PROVIDE A TRANSCRIPT OF CRITICAL PORTIONS

OF THE TRIAL.

QUESTION 2: WHETHER THE STATE COURT

PROCEDURE TO "SETTLE THE RECORD" FOR

APPEAL AMOUNTS TO A FRAUD AND DENIAL OF

DUE PROCESS.

This case should be accepted and a ruling issued on the

merits to determine precisely the legal effect where portions

of the transcript cannot be transcribed due to no fault of the

Petitioner. What was missing was the majority of the

prosecutor's closing argument. There is no doubt that the

unavailability of transcripts for appeal is something that

happens again and again in this country's judicial systems.

Because the Sixth Circuit ruling here was for publication,

considerable mischief will be done if this ruling was wrong.

Where the last major United States Supreme Court ruling on

the subject dates back to 1978, the time has come for the

Supreme Court to consider the issue.

The ruling below was essentially: (1) it does not deny

due process to provide a defendant with an incomplete

transcript for appeal; (2) it is presumed that no errors OF

prejudicial argument by the prosecutor occurred during the

8 Petition for Writ of Certiorari

missing portions of the transcript; (3) as to error found in the

portion that was transcribed, there was no objection made in

those portions of the transcript that were missing; (4) the

state court procedure to "settle the record" did not deny due

process; and (5) the federal court must defer to the findings of

the state court about what the missing transcript portions

would say, if they had been transcribed.

The federal court is to defer only to those state court

factual findings that are reasonable. Williams v. Taylor, 529

U.S. 362; 120 S.Ct. 1495; 146 L.Ed.2d 389 (2000); 28 U.S.C.

§2254(d)(2).

The State of Michigan has undertaken to provide

criminal defendants with true transcriptions of their trials by

qualified court reporters. M.C.R. 8.108. A defendant has the

right to rely on the State's promise.

Yet, the so-called transcript contains the notation that

"Portion of Mr. DeWitt's closing argument was not recorded

— due to error." (T 203). What we got was 2 1/2 pages of

prosecutor DeWitt's closing argument, clearly a small excerpt

of the total. This "error" seriously infringed on Petitioner

Scott's right to a fair trial and right to a fair appeal. Petitioner

did, in state and federal court, complain of improper

prosecutor conduct in the portion of the closing argument

that was transcribed. Any more sérious errors that occurred

during the prosecutor's closing argument were heard by the

jury and had an impact on them, but are forever concealed

Petition for Writ of Certiorari 9

from appellate counsel and the reviewing courts.

Not only does the state's failure directly interfere with

raising any claims based on the portion of the transcript not

prepared, but also interferes with the claims that were made.

In state court, the Court of Appeals rejected an issue of

prosecutor misconduct based on failure to object. However,

defense counsel may have objected many times to the same

errors during the portion of the argument that was not

transcribed. But, without a transcript, Petitioner has no way

to prove that. In other words, the absence of a transcript is

taken by the Michigan Court of Appeals and therefore by the

federal court as being proof that nothing objectionable

happened during the closing argument, and as being proof that

no objections were raised.

For a court to infer the contents of an untranscribed

record is absurd and unreasonable. The factual finding that no

objection was made is not only not supported by substantial

evidence; it is not supported by any evidence at all. The

"finding" is equivalent to an umpire showing up at the 9th

inning of a baseball game, and finding that no runs had been

scored, because the umpire did not see any runs.

The action of the Michigan Court of Appeals in

rejecting the issue for lack of objection was clearly

unreasonable, in that it presumes that where the state has

failed in its obligation to provide a full transcript, the portion

they failed to provide would support the state's position.

10 Petition for Writ of Certiorari

If there is to be no remedy for a defendant who is

cheated out of his full transcript, prosecutors would certainly

want this practice of incomplete transcripts to continue,

because it so directly and severely prejudices the right of any

defendant to win reversal on appeal. When no meaningful

remedy is provided for missing transcripts, no state actor has

any incentive to correct the problem. If portions of

transcripts are missing, the only person who suffers is the

defendant. Clearly, the state would prefer to not suffer for

its own wrongdoings. Here, the state gets the benefit of not

only not suffering, but the bonus of having its opponent

automatically lose an appeal because of state misconduct. By

rewarding the state's failure, the state courts denied due

process of law.

At the post-trial hearing on the missing transcripts,

defense counsel did not remember exactly what was said

during the prosecutor's closing arguments. That left the

defendant to the mercy of the prosecutor's memory. Not

surprisingly, the prosecutor remembered nothing that might

help the defendant on appeal.

What defendant could ever win any appeal, when the

record is nothing more than whatever the prosecutor chooses

to admit? If arguable error takes place, but the prosecutor

fails to remember it, then the appeal is over. The prosecutor

gets to decide whether the defendant has the right to appeal

or not.

Petition for Writ of Certiorari 11

A full and complete transcript of the trial proceedings is

ordinarily considered essential to effective appellate

advocacy. As the Court noted in Hardy v. United States, 375

U.S. 277, 288; 84 S.Ct. 424; 11 L.Ed.2d 331 (1964):

"But when, as here, new counsel represents

the defendant on appeal, how can he faithfully

discharge the obligation which the court has placed

on him unless he can read the entire transcript? ...

The right to notice ‘plain error or defects’ is

illusory if no transcript is available."

See also Justice Goldberg concurring in Hardy v. United

States:

"As any effective appellate advocate will

attest, the most basic and fundamental tool of his

profession is the complete trial transcript, through

which his trained fingers may leaf and his trained

eyes may roam in search of error, a lead to error,

or even a basis upon which to urge a change in an

established and hitherto accepted principle of law.

Anything short of a complete transcript is

incompatible with effective appellate advocacy.”

The Constitution, specifically the due process clause,

requires a reliable record for appeal. Mayer v. Chicago, 414

U.S. 189; 92 S.Ct. 410; 39 L.Ed.2d 378 (1978); U.S. Const.,

Amend. XIV. The Court in Mayer spoke of the need for a

12 Petition for Writ of Certiorari

"record of sufficient completeness to permit proper

consideration of his claims." The unavailability of a complete

and accurate record of proceedings requires the granting of a

new trial because of the requirements of due process and the

protection of the state constitutional right to appeal, Const.

1963, Art 1, §20. People v. Frechette, 380 Mich. 64 (1968);

People v. Tillman, 406 Mich. 898 (1979); People v. Austin, 76

Mich. App. 455 (1977). Once transcription errors or

omissions are shown, the burden is on the State to show that

the existing incomplete transcript will not prejudice the

Defendant on appeal. Mayer v. Chicago, supra, 30 L.Ed.2d

at 379, 381.

The state courts failed to place this burden on the

prosecutor. Instead of requiring proof of what took place

before the jury, they allowed a one-sided presentation by a

partisan, the prosecutor, to be the record. Such a truncated

"record" is not likely to be a fruitful source of appealable

errors. Rather, its very purpose is a fraud, to make it seem as

if there really is a record of what happened during the

prosecutor's closing argument, when there is not. It is the

hope of the state that by calling this a "record," reviewing

courts will be deceived into thinking it really is a record.

Prosecutors are often cited on appeal for introducing

irrelevant and prejudicial matters, for making argument not

based on the evidence, for commenting on the accused's

exercise of the right to remain silent, for shifting the burden of

Petition for Writ of Certiorari 13

proof, and for otherwise making improper argument. But a

prosecutor, in recalling his own closing argument, is not likely

to recall that he argued improperly. A prosecutor is unlikely

to consider his own acts to be misconduct. Even if he did, the

prospect of remembering what was arguably misconduct, two

years later, is very slight.

The finding that there is no evidence of prosecutorial

misconduct is similarly nonsensical, since it assumes an

impossibility: that we can know with any confidence what

happened during portions of the trial that were not

transcribed. By the lower court's logic, a state could provide

a defendant with no transcript of the trial at all, and the

appeal would have to lose because of no evidence of any error

at the trial, since there would be no transcripts containing any

error.

Other criminal defendants in Michigan courts are

routinely provided with full and complete transcripts of their

trial for use on appeal. Petitioner is entitled to the same kind

of appeal that those defendants are given, a meaningful appeal

where the record can be scrutinized for error and objections.

Without the full transcript, counsel cannot scrutinize the

record for error, only the memories of the participants. No

person familiar with the appellate process would want that

kind of appeal for himself or herself.

It is inherently a denial of due process to allow the state

to profit, and the Petitioner to be irreparably harmed, by the

14 Petition for Writ of Certiorari

action of a state employee, in this case, the court reporter

who failed to record. The absence of the transcript is

necessarily prejudicial.

If Scott can get no remedy, is there any reason to think

this will not-happen again? If Scott can get no remedy, his

trial cannot be reviewed for errors, because the record needed

to document errors has been taken from him.

It is a clear error of law to hold that a hearing taking

place 2 years after the trial can provide a record of the trial.

It is an error of fact as well. Lansing Charter Township v

Bondy, 408 Mich 854 (1980) [holding that it would be

unreasonable to settle a record at a hearing held 1 1/2 years

after the events, because of failure of memory]. To hold that

it is a record is a fraud. It is true that a federal court must

defer to reasonable rulings of a state court, however, the

federal court need not and should not defer to a manifest

fraud that calls the prosecutor's memory a record when it is

not. It amounts to a ruling that the state is excused from

preparing an actual record. It amounts to a presumption that

no defendant needs an actual transcript, because the missing

pages could not possibly contain any errors. It delegates the

Petitioner's right to a meaningful appeal to the one person

most likely to not want a meaningful appeal: the prosecutor.

The problems that a defendant faces in trying to

overturn a conviction are immense, even when he has the

record. When this lopsided game is rigged so that the

Petition for Writ of Certiorari 15

defendant cannot even get a transcript, justice hits a new low.

This Court should therefore grant Certiorari and

ultimately order a new trial, and this time, the state should

arrange to have an actual transcript prepared.

QUESTION 3: WHETHER IT DENIES DUE PROCESS

TO PRESUME FROM THE LACK OF TRANSCRIPT

THAT IT CONTAINED NO OBJECTIONS TO THE

PROSECUTOR'S ARGUMENT, AND _ THAT IT

CONTAINS NO LEGAL ERRORS.

QUESTION 4: WHETHER THE PROSECUTOR IN HIS

ARGUMENTS SHIFTED THE BURDEN OF PROOF.

QUESTION 5: WHERE THE STATE COURTS

ROUTINELY GRANT RELIEF FOR THIS ERROR

WITHOUT REQUIRING OBJECTION, WHETHER IT

WAS A VIOLATION OF JOHNSON V. MISSISSIPPI, 486

U.S. 578 (1988) FOR THE FEDERAL COURT TO DENY

REVIEW WHERE THIS TIME THE STATE COURTS

RELIED ON LACK OF OBJECTION.

The essential error in the Court of Appeals’ ruling is

that it accepts, without any evidence, the state court's

unreasonable finding that there was no objection. (Apx A8-

Al0). The overwhelming majority of the prosecutor's closing

argument was not transcribed, not due to any fault of the

Petitioner. For a court to infer the contents of an

untranscribed record is absurd and unreasonable.

16 Petition for Writ of Certiorari

Due process requires that the burden of proof in a

criminal case is on the prosecution. Mullaney v. Wilbur, 421

U.S. 684; 95 S.Ct. 1881; 44 L.Ed.2d 508 (1975); Francis v.

Franklin, 471 U.S. 307; 105 S.Ct. 1965; 85 L.Ed.2d 344

(1985). It denies due process for the prosecutor to make

argument that has the tendency to shift the burden of proof.

People v. Heath, 80 Mich. App. 185 (1977); People v.

Shannon, 88 Mich. App. 138 (1979); People v. Holbrook,

154 Mich. App. 508, 512-513 (1986); People v. Rosales, 160

Mich. App. 304 (1987); People v. Lange, 90 Mich. 454

(1892); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319

(1977); People v. Reed, 393 Mich. 342 (1974); United States

v. Smith, 500 F.2d 293 (6th Cir. 1974).

The prosecutor baldly asserts that Petitioner

"considered it and he talked about it [shooting the deceased]."

(T 204). The evidence, however, shows no such statement

by Petitioner that he intended to shoot the deceased.

The prosecutor argued that "there's no evidence of heat

of the moment, heat of passion, of some _ sudden

unexplainable impulse." (T 212). This clearly shifted the

burden of proof. The question is not whether the defendant

can prove that it was a sudden impulse. The question is

whether the prosecutor can prove it was premeditated and

deliberated. By focusing on what Petitioner failed to prove,

the prosecutor chifted the burden of proof.

A conviction should be reversed where prejudicial and

Petition for Writ of Certiorari 17

improper argument by the prosecutor has the effect of

denying the defendant a fair trial. United States v. McLain,

823 F.2d 1457 (11th Cir. 1987); Bruno v. Rushen, 721 F.2d

1193 (9th Cir. 1983). The standard is whether the comments

"so infected the trial with unfairness as to make the resulting

conviction a denial of due process." Donnelly _ v.

DeChristoforo, 416 U.S. 637 (1974). As the Court observed

in Speiser v. Randall, 357 U.S. 513, 525-526; 78 S.Ct. 1332;

2 L.Ed.2d 1460 (1958):

"In all kinds of litigation it is plain that

where the burden of proof lies may be decisive of

the outcome."

If the argument is sufficiently improper, it may be cause

for reversal even without an objection. United States v.

Harris, 523 F.2d 172 (6th Cir. 1973); Malley v. Manson, 547

F.2d 25 (2nd Cir. 1976); People v. Rosales, 160 Mich. App.

304 (1987). In this case we do not know if there was an

objection or not. The absence of a transcript of most of the

prosecutor's argument means that we cannot know that.

The action of the Michigan Court of Appeals in

rejecting the issue for lack of objection was clearly

unreasonable, in that it presumes that where the state has

failed in its obligation to provide a full transcript, the portion

they failed to provide would support the state's position.

Further, even if the ruling of no objection were correct,

18 Petition for Writ of Certiorari

it still would not bar federal court review. The failure to

object constitutes a bar only if the state has a regularly

followed rule that failure to object at the time of sentencing

acts as a waiver. See Johnson v. Mississippi, 486 U.S. 578,

587; 108 S.Ct. 1981; 100 L.Ed.2d 575 (1988); Ford v.

Georgia, 498 U.S. 411; 111 S.Ct. 850; 112 L.Ed.2d 935

(1991).

Under Michigan law, no objection is needed for review

of a claim that the burden of proof has been shifted. People

: v. Richardson, 409 Mich. 126 (1980); People v. Wright, 408

Mich. 1 (1980).

Further, numerous cases have granted relief to

defendants based on improper prosecutor argument, where

the defendant failed to object. Therefore, Petitioner is not

foreclosed from review even though his attorney failed to

object. M.R.E. 103(d); People v. Knolton, 86 Mich. App.

424 (1978); People v. Ellison, 133 Mich. App. 814 (1984);

People v. Sterling, 154 Mich. App. 223 (1986); People v.

Rone (on 2nd remand), 109 Mich. App. 702, 715 (1981);

People v. Rosales, 160 Mich. App. 304 (1987); People v.

Auer, 393 Mich. 667 (1975); People v. Humphreys, 24 Mich.

App. 411, 416 (1970); People v. Tarpley, 41 Mich. App. 227

(1972); People v. Coffman, 45 Mich. App. 180 (1973);

People v. Strong, 404 Mich. 357, 363 (1978).

The Sixth Circuit clearly erred by refusing to consider

the question of whether the state court rule has been

Petition for Writ of Certiorari 19

consistently and regularly applied, where the United States

Supreme Court directs that is the standard.

In United States v. Smith, supra, 500 F.2d at 294, the

Court said:

"(W]e hold that the prosecutor's comments

were improper because they had the effect of

shifting the burden of proof from the government

to the defendants and abrogating the presumption

of innocence to which appellants were entitled."

The prosecutor's remarks tainted the jury deliberations

with unconstitutional considerations. This Court should

therefore grant Certiorari and ultimately a new trial.

QUESTION 6: WHETHER THE EVIDENCE WAS

INSUFFICIENT TO CONVICT.

Sufficiency of evidence is measured by the standards of

Jackson v. Virginia, 443 U.S. 307; 99 S.Ct. 2781; 61 L.Ed.2d

560 (1979). Under Jackson, we view the evidence in the light

most favorable to the prosecution, and determine whether the

evidence so viewed can reasonably be said to constitute proof

beyond a reasonable doubt.

Under Michigan law, to convict of first degree murder,

the prosecutor must show beyond a reasonable doubt that the

defendant intended to kill, and that after forming that intent,

20 Petition for Writ of Certiorari

he premeditated and deliberated on the intent, before

committing the acts that caused death. People v. Woods, 416

Mich. 581 (1982); People v. Garcia, 398 Mich. 250 (1976).

Intent to kill must first be formed, and then reconsidered,

before it can be said that premeditation and deliberation

existed. People v. Martin, 392 Mich. 553, 560 (1974).

Under Michigan law, "An unlawful homicide is

presumed to be murder in the second degree. The burden is

then the State's to prove facts which elevate the offense to

murder in the first degree." People v. Lynch, 47 Mich. App.

8, 18 (1973).

James Crain testified that he was in the passenger seat

of a car driven by Tyrone Williams, with Petitioner Scott in

the back seat. As they were pulling off from a stop sign,

Crain heard a shot. He saw Williams slump. Crain jumped

out of the car and ran as Petitioner grabbed the steering wheel

from the back seat. (T 107-110).

Petitioner submits this evidence is completely

consistent with unpremeditated murder, and is not proof

beyond a reasonable doubt of the crime of which he stands

convicted. While the jury was not required to accept the

claim of accident, that only takes the case to second degree

murder. There is no showing with evidence that any intent to

shoot was not formed and acted upon immediately.

In finding evidence of premeditation and deliberation,

the Michigan Court of Appeals cited that Petitioner and

Petition for Writ of Certiorari 21

Williams had had trouble in the past, including an incident

involving stereo speakers. (Apx. A7). But that is scarcely

proof that an intent to kill was formed back at the time of the

speaker incident.

The state Court of Appeals ruling involved "an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding." 28 U.S.C.

§ 2254(d)(2). The federal court should overturn a state court

finding that is found to be unreasonable, as the Court did in

Nevers v. Killinger, 169 F.3d 352 (6th Cir. 1999).

The lower court also cited the Petitioner's own

statement to police. With all due respect to the Court,

Petitioner submits that where his statement does not admit

that the intent to kill was formed in advance, it is

unreasonable to find that the statement nevertheless is

evidence that the intent to kill was formed in advance.

This Court should therefore grant Certiorari and

ultimately reduce the conviction to second degree murder and

remand to the Genesee County Circuit Court for

resentencing.

QUESTION 7: WHETHER PETITIONER WAS DENIED

DUE PROCESS BY THE FAILURE OF THE JUDGE TO

INSTRUCT ON THE LESSER OFFENSE OF

INVOLUNTARY MANSLAUGHTER.

22 Petition for Writ of Certiorari

The due process clause of the Fourteenth Amendment

requires that instructions regarding a lesser offense be given

when supported by the evidence. Beck v. Alabama, 447 U.S.

625, 100 S.Ct. 2382, 65 L.Ed. 2d 392 (1980); Keeble v.

United States, 412 U.S. 205; 93 S.Ct. 1993; 36 L.Ed. 2d 844

(1973); Ferrazza v. Mintzes, 735 F.2d 967 (6th Cir. 1985);

Vujosevic v. Rafferty, 844 F.2d 1023 (3d Cir.1988). The test

is whether the jury could rationally find guilt on the lesser

offense but not the greater. United States v. Crutchfield, 547

F.2d 496, 499 (9th Cir. 1977). Yet, here the Sixth Circuit

denies that there is any such rule. (Apx. A15).

In this case, Petitioner admitted to police that he was

holding the firearm when it went off, striking the deceased.

However, he also stated that at the time, the deceased grabbed

for the gun, making it go off accidentally. (T 182-185, 191).

A jury could find that the Petitioner acted with gross

negligence when he held the gun pointed in the direction of

Williams. Therefore, even if the jury did. not hold the

deceased responsible for the gun going off, they could

certainly find that it was gross negligence, rather than intent

to kill, that was the intent with which Petitioner acted.

If a person is guilty of gross negligence, arid the

negligence causes death, the proper conviction is for

involuntary manslaughter. M.C.L. 750.321; People v.

Richardson, 409 Mich. 126 (1980).

Under Michigan law, if the judge had instructed on

Petition for Writ of Certiorari 23

involuntary manslaughter, and Petitioner had been convicted

of that charge, his conviction could not be reversed for

insufficient evidence. People v. Kamin, 405 Mich. 482, 498

(1979); People v. Chamblis, 395 Mich. 408, 423 (1975).

Therefore an instruction on possession was required upon

request. Beck vy. Alabama, supra; United States v.

Crutchfield, supra; Keeble v. United States, supra.

The Michigan Court of Appeals denied this issue on the

basis of no objection or motion. This was error. In People v.

Townes, 391 Mich. 578 (1974), the Michigan Supreme Court

held that it was reversible error to instruct on one form of

manslaughter but not the other, where the one not instructed

on was supported by the evidence. They held this even

though there was no objection or request for the instruction

by the defense. Michigan cases decided both before and after

Petitioner's trial have found this to be reversible error without

regard to objection or request, see People v. Jones, 419 Mich.

577 (1984); People v. Martin, 130 Mich. App. 609 (1983);

People v. Hess, 214 Mich. App. 33 (1996).

Therefore, the state court ruling of failure to objection

or request the instruction does not bar federal court review.

The failure to object constitutes a bar only if the state has a

strictly and regularly followed rule that failure to object at the

time of sentencing acts as a waiver. See Johnson v.

Mississippi, 486 U.S. 578, 587; 108 S.Ct. 1981; 100 L.Ed.2d

575 (1988).

24 Petition for Writ of Certiorari

Neither the state nor the federal court actually

purported to examine the elements of involuntary

manslaughter and relate them to the evidence. Assertion was

their substitute for analysis of the legal claim.

The error is not harmless. See Schad v. Arizona, 501

U.S. 624; 111 S. Ct. 2491; 115 L.Ed.2d 555 (1991):

"As we later explained in Spaziano v.

Florida, 468 U.S. 447, 455 (1984), "[t]he absence

of a lesser included offense instruction increases

the risk that the jury will convict . . . simply to

avoid setting the defendant free. . . . The goal of

the Beck rule, in other words, is to eliminate the

distortion of the factfinding process that is created

when the jury is forced into an all-or nothing

choice"

In this case, a rational jury really could find that the gun

went off as a result of Petitioner's gross negligence: Because

that was not one of the options, they could not express such

a finding it their verdict. This is why Schad and Beck require

that the lesser included offense alternative be given.

There is no doubt that failure to instruct on lesser

included offenses which are supported by the evidence is an

issue often raised in the courts, making it a good subject for

Supreme Court review.

This Court should grant Certiorari and ultimately order

a new trial.

Petition for Writ of Certiorari 25

QUESTION 8: WHETHER PETITIONER WAS

PREJUDICED BY INEFFECTIVE ASSISTANCE OF

COUNSEL THAT REQUESTED NO INSTRUCTIONS TO

THE JURY ON ANY OF THE PETITIONER'S

DEFENSES.

Counsel failed to ask for instructions on involuntary

manslaughter, accident, and careless reckless or negligent use

of a firearm resulting in death. There is no doubt that

accident is supported by the evidence. According to Sgt.

Korabik, Petitioner said that the gun went off by accident

when Williams grabbed it. (T 191). Because accident is

supported, and because a reasonable person could find

Petitioner was grossly negligent in having the gun out,

involuntary manslaughter is supported by the evidence as

well. (See Issue VII). And, if the jury could find Petitioner

grossly negligent, they could find ordinary negligence,

justifying the instruction on careless, reckless or negligent use

of a firearm resulting in death.

Accordingly, the Court of Appeals ruling that these

were not supported by the evidence involved "an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding." 28 U.S.C.

§ 2254(d)(2). The federal court should overturn a state court

finding that is found to be unreasonable, as the Court did in

Nevers v. Killinger, 169 F.3d 352 (6th Cir. 1999).

The ruling says that it is acceptable for the defense

26 Petition for Writ of Certiorari

counsel to pursue one defense over another, and Petitioner

does not dispute that. However, what defense did defense

counsel pursue? That Petitioner did not intend to shoot the

deceased. How could an instruction on involuntary

manslaughter possibly interfere with that defense? How can

a court just guess that this was "tactical" and not carelessness

by the attorney?

In Landers v. Rees, 782 F.2d 1042 (6th Cir. 1985), the

Court stated "Counsel's failure to pursue a substantial

defense, however, violates the defendant's constitutional right

when the failure is a result of ineffectiveness or

incompetence. See, e.g. Beasley, 491 F.2d at 696. In

determining whether counsel's assistance was reasonable, we

must consider 'all the circumstances.' Strickland, 104 S. Ct. at

2065."

In Lucas v. O'Dea, 169 F.3d 1028 (6th Cir. 1999), the

Court granted Habeas Corpus relief, finding ineffective

assistance of counsel for failure to move for jury instructions

that concerned a viable defense, or to object to jury

instructions that omitted that defense.

Prejudice is apparent. It is reasonably probable that a

jury might find involuntary manslaughter or accident where

the prosecutor admits into evidence the defendant's out of

court statement that it happened that way. However, it is

not reasonably probable when the defense counsel does not

ask for it, and the judge does not instruct on it.

Petition for Writ of Certiorari 27

This Court should grant Certiorari and ultimately find

ineffective assistance of counsel. Strickland v. Washington,

466 U.S. 668; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984); U.S.

Const., Amend. VI.

QUESTION 9: WHETHER PETITIONER WAS

PREJUDICED BY THE CUMULATIVE EFFECT OF THE

ERRORS.

It has long been held that if the combined weight of

errors deprives the accused of a fair trial, this requires reversal

even if individual errors standing alone would not require

reversal. Herbert v. Louisiana, 272 U.S. 312, 316; 47 S.Ct.

103; 71 L.Ed.2d 270 (1926); United States v. Jones, 482 F.2d

747 (D.C. Cir. 1973); Cooper v. Sowders, 837 F.2d 284 (6th

Cir. 1988); People v. Wallace, 160 Mich. App. 1 (1987);

People v. Rosales, 160 Mich. App. 304 (1987).

The Sixth Circuit ruling in this case puts an end to that

line of cases, by holding that a claim based on cumulative

effect of issues is not justiciable and cannot be granted. (Apx.

A18-A19).

Because this is an opinion for publication, the legal

issue of cumulative effect of errors is now dead, for Petitioner

Scott and other litigants. This Court should grant Certiorari

to determine the fate of cumulative effect as an issue.

28 Petition for Writ of Certiorari

CONCLUSION

Petitioner Cortez Scott respectfully submits that for the

reasons stated above, this Court should grant Certiorari, and

upon consideration grant a Writ of Habeas Corpus, or order

the lower courts to do so.

spectfully submitted,

JAMES STERLING LAWRENCE (P33664)

Attorney for Petitioner Scott

717 Penobscot Building

Detroit, MI 48226

(313) 965-4189

Dated: December 2, 2002

Sixth Circuit Opinion, 9/6/02 Al

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Cortez Scott,

Petitioner-Appellant,

v. No. 01-1475

Frank Elo, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the

Eastern District of Michigan at Detroit. No. 00-71894--

Victoria A. Roberts, District Judge.

Argued: August 8, 2002

Decided and Filed: September 6, 2002

Before: KENNEDY, SUHRHEINRICH, and

BATCHELDER, Circuit Judges.

OPINION

KENNEDY, Circuit Judge. Petitioner Cortez Scott

appeals the denial of his application for writ of habeas

corpus. For the following reasons, we affirm the judgment of

the district court.

I.

Following a jury trial in Genesee County (Michigan)

A2 - Sixth Circuit Opinion, 9/6/02

Circuit Court, petitioner Cortez Scott was convicted of first

degree murder and possession of a firearm during the

commission of a felony. The Michigan Court of Appeals

summarized the underlying facts:

The record reveals that on the evening of February 16,

1994, defendant shot and killed twenty-one-year-old Tyrone

Williams while they and James Crain were driving in

Williams’ Pontiac Grand Am in Flint. Crain testified that

before the shooting he overheard the defendant say that he

could rob Williams. Without warning, defendant, who was

riding in the back of the car, pulled out a gun and ___ shot

Williams in the head. After defendant climbed from the back

of the vehicle to the driver's seat, Crain jumped out and

defendant sped away. Within an hour, Crain called 911 from a

relative's house and told the operator what had happened.

Crain indicated that on a previous occasion, defendant shot in

Williams’ direction after an argument over stereo speakers.

Flint Detective Sergeant Thomas Korabik testified that

while conducting an interview at the police station that

evening, defendant stated that he and Williams had problems

in the past and referred to the _ incident regarding the stereo

speakers. Defendant.further stated: that while nding in the

Grand Am, he began thinking of the previous problems

between the two, pulled out the gun, pointed it in the air, and

said to Williams, "What's up now?" Defendant then lowered

the gun and shot Williams in the head. Defendant explained

that after Crain jumped out of the car, he continued to drive

Sixth Circuit Opinion, 9/6/02 A3

and threw the gun out of the car five houses down ithe road.

Furthermore, defendant indicated that he had the gun in his

right pants pocket before Williams picked him up that

evening. Williams was found at a nearby school with

gunshot wounds to the head and stomach. Blood and brain

matter were discovered in the Grand Am. People v. Scott,

No. 182235, 1997 WL 33354441, at *2 (Mich.Ct.App. Jan.

21, 1997) (unpublished per curiam opinion) (footnote

omitted). Scott was sentenced to life in prison without parole

for the murder conviction, and a concurrent two year term for

the firearm conviction. On direct appeal to the Michigan

Court of Appeals, Scott raised the following claims(1):

I. There was insufficient evidence presented to convict

appellant of first degree murder.

II. The prosecutor's argument shifted the burden of

proof to appellant which constitutes prosecutor

misconduct and reversible error.

III. Appellant was denied due process of law where the

record fails to include the entire portion of the prosecutor's

final argument.

IV. The jury instructions were reversibly erroneous

because the court did not distinguish between voluntary and

involuntary manslaughter despite appellant's assertion of an

accident defense.

V. Appellant was deprived of his constitutional right of

effective assistance of trial counsel.

VI. The cumulative effect of the errors justify reversal

A4 Sixth Circuit Opinion, 9/6/02

for a new trial. |

The Court of Appeals affirmed Scott's convictions.

Scott filed a delayed application for leave to appeal with the

Michigan Supreme Court. The Michigan Supreme Court

vacated the opinion of the Court of Appeals with respect to

the transcript issue, finding that the Court of Appeals could

not resolve some of Scott's claims where a portion of the

transcript of the prosecutor's closing argument was missing,

and remanded for further proceedings. The Court directed

that the Court of Appeals obtain a videotape or a complete

transcript of the trial, or direct settlement of the record

pursuant to M.C.R. 7.210(B)(2) before addressing the merits

of Scott's claims of prosecutor misconduct and ineffective

assistance of counsel. As to all other claims, the Michigan

Supreme Court denied leave to appeal. People v. Scott, 575

N.W.2d 549 (Mich. 1998).

The appellate court found that the trial transcript

omitted approximately eighteen minutes of the prosecutor's

closing argument, and that no other transcript or videotape of

the closing argument existed. It therefore directed the trial

court to settle the record. On remand, the trial court held a

hearing to determine what happéned during the missing

portion of the prosecutor's closing arguments. After

reviewing the record of that hearing and the record on appeal,

the Michigan Court of Appeals again affirmed Scott's

convictions. The Michigan Supreme Court denied leave to

appeal. Scott then filed a petition for writ of habeas corpus

Sixth Circuit Opinion, 9/6/02 A5

with the U.S. District Court for the Eastern District of

Michigan, advancing the same claims he had made in the state

courts. On March 8, 2001, the district court denied Scott's

petition. This appeal followed.

II.

We review the district court's legal conclusions de novo

and its factual findings for clear error. DeLisle v. Rivers, 161

F.3d 370, 380 (6th Cir.1998). Scott filed his petition for

federal habeas corpus relief on April 25, 2000. Thus, the

1996 amendments to 28 U.S.C. § 2254, embodied in the

Antiterrorism and Effective Death Penalty Act ("AEDPA"),

are applicable to Scott's petition. See Lindh v. Murphy, 521

U.S. 320, 326-27 (1997).

The Supreme Court recently described the standard for

reviewing state court decisions under the AEDPA as follows:

Under § 2254(d)(1), the writ may

issue only if one of the following two

conditions is satisfied - the state-court

adjudication resulted in a decision that (1)

"was contrary to... clearly established

Federal law, as determined by the Supreme

Court of the United States," or (2) "involved

an unreasonable application of .. . clearly

established Federal law, as determined by the

Supreme Court of the United States."

Under the "contrary to" clause, a federal habeas court

may grant the writ if the state court arrives at a conclusion

A6 Sixth Circuit Opinion, 9/6/02

opposite to that reached by this Court on a question of law

or if the state court decides a case differently than this Court

has on a set of materially indistinguishable facts. Under the

"unreasonable application” clause, a federal habeas court may

grant the writ if the state court identifies the correct governing

legal principle from this Court's decisions but unreasonably

applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). With these

standards in mind, we consider each of Scott's claims in turn.

A. Insufficiency of the Evidence

Scott's first argument is that there was insufficient

evidence to convict him of first degree murder. Specifically,

he contends that there was no evidence that the killing was

premeditated and deliberate. In Jackson v. Virginia, the Court

held that a petitioner is not entitled to habeas corpus relief

based on insufficient evidence where, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. 443 U.S. 307, 319

(1979); Sanders v. Freeman, 221 F.3d 846, 856 (6th Cir.

2000). This standard applies whether the evidence of guilt

was direct or circumstantial. See Spalla v. Foltz, 788 F.2d

400, 402 (6th Cir. 1986).

Under Michigan law, first degree murder requires a

showing by the prosecution that the defendant intentionally

killed the victim, and that the act of killing was premeditated

and deliberate. People v. Schollaert, 486 N.W.2d 312, 318

Sixth Circuit Opinion, 9/6/02 A7

(1992). Here, both the Michigan Court of Appeals and the

district court found that the evidence supported the

conviction for first degree murder. Both courts relied on

evidence that Scott had placed a gun in his pocket before

Williams picked him up, the testimony of Crain that Scott

and Williams had a prior dispute over stereo speakers, Scott's

admission that he had ill feelings toward Williams, and

evidence that Scott shot Williams a second time in the

Stomach after leaving the scene of the first gunshot. Scott

argues that there are possible alternative explanations for

these occurrences, and that they do not necessarily show

premeditation or deliberate killing. Under the Jackson

standard, Scott's arguments in this regard are inapposite. A

reasonable trier of fact could have drawn from the evidence

described above the reasonable inference that Scott's decision

to kill Williams was premeditated and that the act of killing

was deliberate. Scott's insufficiency of the evidence claim

therefore fails.

B. Prosecutorial Misconduct

Scott's second claim is that the prosecutor improperly

Shifted the burden of proof at trial. He points to the

prosecutor's statement during closing arguments that "there's

no evidence of heat of the moment, heat of passion, of some

Sudden unexplainable impulse." Scott argues that this

statement improperly placed the burden on Scott to show

some evidence of a factor that would reduce the crime from

first degree murder, rather than leaving the burden with the

A8 Sixth Circuit Opinion, 9/6/02

prosecutor to prove the elements of premeditation and

deliberate killing beyond a reasonable doubt. The district

court concluded that this claim was barred by procedural

default and, alternatively, lacked merit.

The opinion of the Michigan Court of Appeals, the last

reasoned opinion of the Michigan courts considering this

claim, determined that Scott had waived the claim of error by

failing to object at trial to the prosecutor's remarks. The court

therefore considered only whether the remarks resulted in a

miscarriage of justice or whether a cautionary instruction

could not have cured any error, concluding:

The record reveals that the prosecutor merely argued

that defendant intended to kill in a_ cold-blooded,

premeditated, and deliberate manner. Such an argument

amounts to nothing more than discrediting the defense, which

is proper. . Moreover, the trial court's instruction regarding

the burden of proof cured any possible prejudiciai effect from

the prosecutor's closing argument. Scott, 1997 WL

33354441, at *3; see also People v. Scott, No. 182235, 1998

WL 1990436, at *1, n.1 (Mich. Ct. App. 1998) (on remand)

(reaffirming prior finding that no comments could be

construed as shifting the burden of proof, and that defendant

had not objected to any comments made by the prosecutor).

The district court, therefore, found that this claim was

procedurally defaulted.

Scott contends that this was error because neither the

Michigan Court of Appeals nor the district court had the

Sixth Circuit Opinion, 9/6/02 A9

benefit of a complete transcript of the closing arguments to

determine whether Scott's counsel did, in fact, object to any

Statements made by the prosecutor. Yet, the statement at

issue was made during the prosecutor's rebuttal, which was

_ fully transcribed. The missing portion of the transcript

covered the beginning of the prosecutor's first closing

argument. Defense counsel clearly did not object at any time

between the statement at issue and the conclusion of the

arguments. In any event, the trial court held a hearing to

determine what was said during closing arguments. The

prosecutor reconstructed an outline of his argument from

notes that he had maintained. The prosecutor was then asked

whether the defense made any objections to his closing

argument, to which he responded that he did not recall any

objections during closing arguments. Although defense

counsel was not specifically asked at the hearing whether he

objected during the prosecution's closing argument, he did not

refute the account given by the prosecutor.

It appears that Scott made no objection to the

prosecutor's argument. Any contention that there might have

been an objection is sheer speculation and is contrary to the

testimony at the settlement of the record hearing, as well as

the portion of the record that we do have. Scott does not

argue that he can show cause and prejudice for his failure to

object at trial, nor does he make a showing of actual

innocence. Hence, this claim is procedurally defaulted. In any

event, as the district court noted, any prosecutorial

Al0 Sixth Circuit Opinion, 9/6/02

misconduct in this statement was not so severe as to deprive

Scott of a fair trial. Nor was any error such that the jury

instructions could not cure it. The trial judge issued proper

instructions on the burden of proof and instructed that

anything the attorneys had said to the contrary was to be

disregarded. Scott's prosecutorial misconduct claim is

meritless.

C. Transcription Error

Scott's third claim is that the failure to transcribe a

significant portion of the closing argument denied him due

process. Scott again notes that the missing portion of the

transcript may conceal an objection he may have made to

some improper statement by the prosecutor. Scott notes that

his counsel could not remember exactly what was said during

the closing arguments, and he was therefore left to the mercy

of the prosecutor's notes and memory, which yielded nothing

that would aid Scott in his appeal. Scott relies heavily on the

Supreme Court's opinion in Mayer v. Chicago, 404 U.S. 189

(1971), to argue that due process requires that a defendant be

given a reliable record of sufficient completeness to permit

proper review of his claims. Yet, Mayer was a case in which

there was an existing record, and the only question was

whether an indigent defendant convicted of a nonfelony,

rather than a felony, was entitled to the complete transcript

where the defendant's grounds for appeal made out a

colorable need for a complete transcript. The Court held that

such a defendant must be afforded a "record of sufficient

Sixth Circuit Opinion, 9/6/02 All

completeness’ to permit proper consideration of [his] claims."

Id. at 194. The Court went on to acknowledge that a record of

sufficient completeness did not necessarily require a verbatim

transcript, so long as the state found other means of

providing an adequate record, such as an agreed statement of

facts, a full narrative statement based on a court reporter's

notes or a judge's notes, or a bystander's bill of exceptions. Id.

The Court placed the burden on the state, in that situation, to

show that something less than a complete transcript would be

sufficient.

Mayer does not stand for the proposition, implicit in

Scott's argument, that where a portion of a trial transcript is

missing and unobtainable, and where a defendant makes a

claim that could possibly implicate that portion of the

transcript, a retrial is always necessary. Rather, the Sixth

Circuit has held that federal habeas relief based on a missing

transcript will only be granted where the petitioner can show

prejudice. Bransford v. Brown, 806 F.2d 83, 86 (6th Cir.

1986). In Bransford, the court considered whether the

unavailability of transcripts of jury instructions was a per se

violation of due process. The trial court in that case

determined that the transcript of the instructions was

irretrievably lost and was incapable of reconstruction.

Bransford argued that he should be entitled to review the

instructions for error. Although Bransford proffered no

specific errors, his trial attorney recalled having made some

objections to the instructions at trial. The court held that this

Al2 Sixth Circuit Opinion, 9/6/02

situation did not present a per se violation of due process.

Instead, a petitioner "must show prejudice resulting from the

missing transcripts." Id. The court went on to note:

"Although this court recognizes the difficulty in

demonstrating prejudice where the transcripts are missing,

petitioner must present something more than _ gross

speculation that the transcripts were requisite to a fair

appeal." Id. The court found insufficient Bransford's

argument that errors are frequently found in jury instructions

for felony murder trial, and his trial attorney's recollection

that some unspecified objections were made.

Here, Scott offers nothing more than gross speculation

of error in the missing portion of the transcript. He contends

that the prosecutor might have made some improper

comments. He also contends that his attorney might have

objected to the one specific statement Scott identifies as

improper. Yet, as discussed above, the transcript is complete

following that one statement, and no objection was made to

it. Further, the prosecutor could not recall any objections

during closing arguments, and defense trial counsel did not

dispute the prosecutor's account. Nor did defendant or his

lawyer make any allegation of misconduct beyond the one in

the rebuttal argument. Scott has not shown prejudice resulting

from the transcription error. Scott is therefore not entitled to

habeas relief based on the transcription error.

D. Jury Instruction

Scott's fourth claim is that the trial court erred by not giving

Sixth Circuit Opinion, 9/6/02 A 13

the jury an instruction on involuntary manslaughter. The trial

court instructed the jury on first degree murder, second degree

murder, and voluntary manslaughter. Scott did not request an

involuntary manslaughter instruction at trial. The Michigan

Court of Appeals denied relief on this claim based upon

Scott's failure to request the instruction. Hence, this claim is

procedurally defaulted unless Scott can show cause and

prejudice, or show that denial of relief will result in a

fundamental miscarriage of justice.

Scott argues that ineffective assistance of trial counsel

provides the cause for his failure to request an involuntary

manslaughter instruction. As the district court found,

however, even if we assume that Scott can establish cause, he

cannot demonstrate actual prejudice or a fundamental

miscarriage of justice. There was not sufficient evidence for a

jury to reach a verdict of involuntary manslaughter. The only

theory that Scott now advances to support such a verdict is

that the shooting was an accident. Scott points to his written

statement, in question and answer form, to the police.

Q: At one point while you were in the car, you pulled the

gun from your pocket?

A: Yes.

Q: And held it in the air?

A: Yes.

Q: What did you say at that time?

A: What was up between me and him.

Q: Between you and Tyrone?

Al4 Sixth Circuit Opinion, 9/6/02

A: Yes.

Q: What did you do then?

A: By that time, Terry had left out the car, jumped out the

car. Tyrone had grabbed my handandI squeezed the trigger

and it went off.

Q: Meaning the gun went off?

A: Yes. The natural reflex and I jumped, but the gun had

went off by then.

Scott argues that this evidence was sufficient to require

an involuntary manslaughter instruction. He ignores,

however, evidence that would prevent a reasonable jury from

finding involuntary manslaughter. First, this statement

differed from his responses during an informal interview, in

which Scott said that he pulled out the gun, put it up in the

air, said "What's up now?" and then lowered the gun and shot

Williams. Further, the first gunshot wound was in the night

side of Williams's head, above the right ear and slightly behind

the temple. If Williams had turned around to face Scott, it is

unlikely that the bullet would have entered at that point.

Most importantly, Scott ignores the evidence that he left the

scene of the first shooting, drove to a parking lot, pulled

Williams oui of the car, and shot him one more time. Even if a

reasonable jury could have found that the first shot was an

accident, no reasonable jury could have found that the second

shot was accidental. When considering all the evidence

presented at trial, it simply did not support an involuntary

manslaughter instruction.

Sixth Circuit Opinion, 9/6/02 Al5

Moreover, even if Scott's claim was not procedurally

defaulted, and even if the trial court erred as a matter of state

law, that is not a sufficient basis for granting habeas relief.

Although the Supreme Court has held that it is a violation of

due process for a court to fail to instruct on a lesser included

offense supported by the evidence in a capital case, see Beck

v. Alabama, 447 U.S. 625, 627 (1980), it has not so held in

noncapital cases. To the contrary, the Sixth Circuit has held

that failure to instruct on a lesser included offense in a

noncapital case is not "such a fundamental defect as

inherently results in a miscarriage of justice or an omission

inconsistent with the rudimentary demands of fair

procedure." Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir.

1990). For all of these reasons, Scott is not entitled to habeas

relief on this claim.

E. Ineffective Assistance of Counsel

Scott's fifth claim is that he was denied the effective

assistance of trial counsel. He advances two reasons: 1) his

counsel's failure to request an instruction on involuntary

manslaughter, and 2) his counsel's cross-examination of Crain,

which brought out testimony that Scott and Williams had

been involved in a prior dispute over stereo speakers, and

that Scott had shot in Williams's direction during that prior

* dispute. The test for determining whether counsel is

constitutionally ineffective was set forth in Strickland v.

Washington, 466 U.S. 668, 687 (1984). Under Strickland, a

petitioner must first show that counsel's performance was

Al6 Sixth Circuit Opinion, 9/6/02

deficient. To do so, the petitioner must prove that counsel

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

counsel as guaranteed by the Sixth Amendment. Id. Second,

the petitioner must establish that counsel's deficient

performance prejudiced the defense. Id. This requires a

showing that counsel's errors were so serious that they

deprived petitioner of a fair trial. Id.

1. Involuntary Manslaughter Instruction

The Michigan Court of Appeals determined that

counsel's failure to request a jury instruction on involuntary

manslaughter did not amount to a deficient performance

because the evidence did not support a finding of involuntary

manslaughter, and because counsel made a strategic decision

to advance two other defense theories - intoxication and

provocation. Having reviewed the record, we cannot say that

the Michigan Court of Appeals unreasonably applied the

Strickland test. As detailed above, there was insufficient

evidence to support an accident theory. That an accident

theory was not necessarily inconsistent with the other two

defenses does not mean, as Scott argues in his brief, that

counsel was deficient for not requesting the instruction.

Counsel made a strategic decision to. advance the two more

plausible defense theories, rather than to present the jury

with a different story of how the shooting took place, which

could have been easily contradicted by the physical evidence

and Scott's own inconsistent statement.

2. Cross Examination of Crain

Sixth Circuit Opinion, 9/6/02 A17

Scott also contends that his trial counsel's cross

examination of Crain was a deficiency amounting to

ineffective assistance of counsel. The questioning at issue

went as follows:

Q: In your presence, has he ever threatened Tyrone

Williams?

A: Yes.

Q: When?

A: About - about four months before that happened, he -

you know, him and Tyrone exchanged words, as we was

talking - me and somebody else was talking - Cortez shot his

gun at Tyrone that day; shot at him, toward him, you

know, shot toward him.

Q: What was the argument over?

A: I guess it was a kicker box they had previously argued

over; a speaker box.

Q: Okay, you said that you saw Cortez take a shot at

Tryone about four months prior?

A: Yes.

Q: You witnessed that?

A: Yes.

The Michigan Court of Appeals noted that this line of

questioning was "unwise," but nonetheless found that it did

not meet the Strickland test for ineffective assistance of

counsel. The court held that it was not prejudicial to Scott.

The police officer who took Scott's statement had already

A18 Sixth Circuit Opinion, 9/6/02

testified that Scott told him about the stereo speaker dispute,

although nothing was mentioned about Scott's shooting in the

direction of Williams. The court also held that there was

ample evidence, other than this testimony, to support a

conviction of first degree murder.

Again, we cannot say that the Court of Appeals’

application of Strickland was unreasonable. Although the

testimony was not cumulative with respect to Scott's earlier

shooting in the direction of Williams, there was sufficient

evidence in the record, aside from this fact, to support a first

degree murder conviction. As set forth supra, Part II.A., that

evidence consisted of Scott's admission that he harbored ill

feelings toward Williams, the officer's testimony regarding the

earlier speaker dispute, the fact that Scott put a gun in his

pocket before he was picked up by Williams, and the fact

that he took Williams to a parking lot and shot him a second

time. In light of this evidence, Scott is unable to show that

counsel's error in following this line of questioning deprived

him of a fair trial. Accordingly, Scott's claim of ineffective

assistance of counsel fails.

F. Cumulative Error

Scott's final claim is that the cumulative effect of the

errors detailed in his first five claims deprived him of a fair

trial. The Michigan Court of Appeals rejected this claim

because it found no errors in Scott's other claims. The

Supreme Court has not held that constitutional claims that

would not individually support habeas relief may be

Sixth Circuit Opinion, 9/6/02 A 19

cumulated in order to support relief. See Lorraine v. Coyle,

291 F.3d 416, 447 (6th Cir. 2002). In any event, we do not

find that any errors, even when cumulated, denied Scott a fair

trial. The Michigan court's decision was not contrary to, nor

an unreasonable application of, federal law.

III.

For the foregoing reasons, we affirm the judgment of the

district court. |

Footnotes

1 Claims I through III were raised by Scott through his

counsel. Claims IV through VI were raised by Scott in pro

per.

2 M.C.R. 7.210(B)(2) provides:

(2) Transcript Unavailable. When a transcript of the

proceedings in the trial court or tribunal cannot be obtained

from the court reporter or recorder, the appellant shall file a

settled statement of facts to serve as a substitute for the

transcript.

(a) Within 14 days after filing the claim of appeal, the

appellant shall file with the trial court or tribunal clerk, and

serve on each appellee, a proposed statement of facts. The

proposed statement of facts must concisely set forth the

substance of the testimony, or the oral proceedings before the

trial court or tribunal if no testimony was taken, in sufficient

detail to inform the Court of Appeals of the nature of the

controversy and of the proceedings in the trial court or

tribunal.

A20 Sixth Circuit Opinion, 9/6/02

(b) The appellant shall notice the proposed statement of facts

for prompt settlement before the trial court or tribunal. An

amendment or objection to the proposed statement of facts

must be in writing, filed in the trial court or tribunal before

the time set for settlement, and served on the appellant and

any other appellee.

(c) The trial court or tribunal shall settle any controversy and

certify a statement of facts as an accurate, fair, and complete

statement of the proceedings before it.

(d) The statement of facts and the certifying order must be

filed with the trial court or tribunal clerk and a copy of the

certifying order must be filed with the Court of Appeals.

fre eet

US District Court ruling, 3/8/01 A21

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CORTEZ SCOTT,

Petitioner.

CASE NO. 00-CV-71894-DT

-VS- HON. VICTORIA A ROBERTS

FRANK ELO,

Respondent.

OPINION AND ORDER DENYING

P FOR CORPUS

Petitioner Cortez Scott ("Petitioner"), a state prisoner

currently confined at the Harrison Correctional Facility in

Adrian, Michigan, has filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Petitioner was

convicted of first-degree murder and felony firearm following

a jury trial in the Genesee County Circuit Court in 1994. He

was sentenced to life imprisonment without parole on the

murder conviction and a consecutive term of two years

imprisonment on the firearm conviction.

Petitioner challenges the constitutionality of his state

court proceedings, raising claims concerning the sufficiency of

the evidence, prosecutorial misconduct, the failure to

A 22 US District Court ruling, 3/8/01

transcribe part of the prosecutor's closing argument, the

failure to instruct the jury on involuntary manslaughter, the

effectiveness of trial counsel, and cumulative error. For the

reasons stated below, Petitioner's request for habeas relief is

denied and the petition for a writ of habeas corpus is

dismissed.

I. Factual Background

Petitioner's convictions stem from the shooting death of

Tyrone Williams on February 16, 1994 in Flint, Michigan.

The Michigan Court of Appeals described the salient facts as

follows:

The record reveals that on the evening of February

16, 1994, defendant shot and killed

twenty-one-year-old Tyrone Williams while they and

James Crain were driving in Williams’ Pontiac Grand

Am in Flint.' Crain testified that before the shooting

he overheard the defendant say that he could rob

Williams. Without warning, defendant, who was riding

in the back of the car, pulled out a gun and shot

Williams in the head. After defendant climbed from

the back of the vehicle to the driver's seat, Crain

jumped out and defendant sped away. Within an hour,

Crain called 911 form a relative's house and told the

operator what had happened. Crain indicated that on a

previous occasion, defendant shot in Williams’

direction after an argument over stereo speakers.

oe *

pinite aepembeenerer erie

US District Court ruling, 3/8/01 A 23

Flint Detective Sergeant Thomas Korabik testified

that while conducting an interview at the police

station that evening, defendant stated that he and

Williams had problems in the past and referred to the

incident regarding the stereo speakers. Defendant

further stated that while riding in the Grand Am, he

began thinking of the previous problems between the

two, pulled out the gun, pointed it in the air, and said

to Williams, "What's up now?" Defendant then

lowered the gun and shot Williams in the head.

Defendant explained that after Crain jumped out of

the car, he continued to drive and threw the gun out of

the car five houses down the road.' Furthermore,

defendant indicated that he had the gun in his right

pants pocket before Williams picked him up that

evening. Williams was found at a nearby school with

gunshot wounds to the head and stomach. Blood and

brain matter were discovered in the Grand Am.

‘Crain testified that they purchased beer at a drive-up party

store, drove around drinking the beer and smoking a marijuana

cigar, and made brief stops at two girlfriends’ homes before

the shooting occurred.

"In making his police statement, Petitioner also told Detective

Korabik that he pulled the trigger of the gun when Williams

grabbed his hand.

A 24 US District Court ruling, 3/8/01

People v. Scott, No. 182235, *2 (Mich. Ct. App. Jan. 21,

1997) (unpublished) (footnotes supplied).

At the close of trial, the jury found Petitioner guilty of

first-degree murder and felony firearm. The trial court

subsequently sentenced him to the mandatory terms of life

imprisonment without parole plus two years imprisonment.

II. Procedural History

Following his convictions and sentencing, Petitioner ~

filed an appeal as of right with the Michigan Court of

Appeals, raising the following claims through counsel and in

pro per:

I. There was insufficient evidence to convict him of

first-degree murder.

II. The prosecutor's argument shifted the burden of proof

which constitutes prosecutor misconduct and reversible error.

III. He was denied due process of law where the record fails

to include the entire portion of the prosecutor's final

argument.

IV. The jury instructions were reversibly erroneous because

the court did not distinguish between voluntary and

involuntary manslaughter despite his assertion of an accident

defense.

V. He was deprived of his constitutional right of effective

assistance of trial counsel.

VI. The cumulative effect of the errors justify reversal for a

“Siena MAIR Rie oN ie, FREON

SET ste OTE LLANE SONG ORLEANS I AN es aR REG a ice HLL

US District Court ruling, 3/8/01 A 25

new trial.

The Court of Appeals affirmed Petitioner's convictions

and sentence. People v. Scott, No. 182235 (Mich. Ct. App.

Jan. 21, 1997) (unpublished). Petitioner then filed a delayed

application for leave to appeal with the. Michigan Supreme

Court raising the same issues. In lieu of granting leave to

appeal, the Michigan Supreme Court vacated the portion of

the Court of Appeals' opinion which addressed the transcript

issue and remanded for further proceedings. In all other

respects, leave to appeal was denied. People v. Scott, 456

Mich. 931,575 N.W.2d 549 (Feb. 3, 1998).

On remand, the trial court conducted a hearing

concerning the prosecutor's closing argument. Reviewing that

evidence as well as the record on appeal, the Michigan Court

of Appeals found that there was no_ indication of

prosecutorial misconduct during closing arguments and again

affirmed

Petitioner's convictions and sentence. People v. Scott (on

remand), No. 182235 (Mich. Ct. App. Aug. 18, 1998)

(unpublished). Petitioner then filed another delayed

application for leave to appeal with the Michigan Supreme

Court, which was denied. People v. Scott, 459 Mich. 982,

593 N.W.2d 554 (April 27, 1999).

Petitioner, through counsel, filed the present habeas

petition on April 25, 2000, raising the same claims presented

to the Michigan appellate courts. Respondent filed an answer

to the petition on September 11, 2000, asserting that

A 26 US District Court ruling, 3/8/01

Petitioner's claims should be denied based upon procedural

default and/or for lack of merit.

Ii. Standard of Review

The provisions of the Antiterrorism and Effective

Death Penalty Act of 1996 ("AEDPA"), Pub. L. No.

104-132, 110 Stat. 1214 (April 24, 1996), govern this case

because Petitioner filed this habeas petition after the

AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320,

336 (1997). The AEDPA provides:

An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless

the adjudication of the claim

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

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; or

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

determination of the facts in light of the evidence presented in

the State court proceeding. 28 U.S.C. §2254(d) (1996).

In Williams v. Taylor, - U.S. , 120 S. Ct. 1495 (2000),

the United States Supreme Court undertook a detailed

US District Court ruling, 3/8/01 A27

analysis of the correct standard of review under the AEDPA.

According to the Supreme Court:

Under § 2254(d)(1), the writ may issue only if one

of the following two conditions is satisfied - the

State-court adjudication resulted in a decision that (1)

"was contrary to .. . clearly established Federal law,

as determined the by Supreme Court of the United

States," or (2) "involved an unreasonable application

of . . . clearly established Federal law, as determined

by the Supreme Court of the United States." Under

the "contrary to" clause, a federal habeas court may

grant the writ if the state court arrives at a conclusion

opposite to that reached by this Court on a question

of law or if the state court decides a case differently

than this Court has on a set of materially

indistinguishable facts. Under the "unreasonable

application" clause, a federal habeas court may grant

the writ if the state court identifies the correct

governing principle from this Court's decisions but

unreasonably applies that principle to the facts of the

prisoner's case.

=>

Id. at 1523 (O'Connor, J., delivering the opinion of the Court

on this issue).

In evaluating a state court decision under the

"unreasonable application" clause, the Supreme Court further

A 28 US District Court ruling, 3/8/01

stated that a federal habeas court "should ask whether the

state court's application of clearly established federal law was

objectively unreasonable." Id. at 1522. "Under § 2254(d)(1)'s

“unreasonable application’ clause, then, a federal habeas court

may not issue the writ simply because the court concludes in

its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or

incorrectly. Rather, that application must also be

unreasonable." Id.

The Supreme Court also clarified that the phrase

"clearly established Federal law, as determined by the

Supreme Court of the United States," refers only to "the

holdings, as opposed to the dicta, of [the Supreme Court's]

decisions as of the time of the relevant state-court decision."

Id. at 1523. In determining what constitutes clearly

established federal law, therefore, a federal habeas court must

look to pertinent United States Supreme Court precedent.

Lastly, this Court must presume that state court factual

determinations are correct. 28 U.S.C. § 2254(e)(1). A habeas

petitioner may rebut this presumption only with clear and

convincing evidence. See Warren v. Smith, 161 F.3d 358,

360-61 (6th Cir. 1998).

IV. Analysis

A. _ Insufficient Evidence Claim ve

Petitioner first claims that he is entitled to habeas relief

because there was insufficient evidence presented at trial to

US District Court ruling, 3/8/01 A29

convict him of first-degree murder. Specifically, Petitioner

claims that the prosecution failed to establish that he acted

with intent to kill and premeditation and deliberation.

In Jackson v. Virginia, 443 U.S. 307 (1979), the

Supreme Court established that a federal court's review of a

sufficiency of the evidence claim must focus on whether

"after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essenitial elements of the crime beyond a reasonable doubt."

Id. at 319; see also DeLisle v. Rivers, 161 F.3d 370, 389 (6th

Cir. 1998). Because a claim of insufficiency of the evidence

presents a mixed question of law and fact, Huynh v. King, 95

F.3d 1052, 1059 (11th Cir. 1996); Maes v. Thomas, 46 F.3d

979, 988 (10th Cir. 1995), this Court must determine whether

the state court's application of the Jackson standard was

reasonable.

Under Michigan law, first-degree premeditated murder

requires proof that the defendant intentionally killed the

victim and that the act of killing was premeditated and

deliberate. People v. Schollaert, 194 Mich. App. 158, 170,

486 N.W.2d 312 (1992). Premeditation and deliberation

require sufficient time to allow the defendant to take a second

look. Id. Premeditation and deliberation may be established

by evidence of "(1) the prior relationship of the parties; (2)

the defendant's actions before the killing; (3) the

circumstances of the killing itself; and (4) the defendant's

conduct after the homicide." Id. Circumstantial evidence and

A30 US District Court ruling, 3/8/01

reasonable inferences drawn therefrom may be sufficient to

prove the elements of the crime. People v. Jolly, 442 Mich.

458, 466, 502 N.W.2d 177 (1993).

In concluding that sufficient evidence was presented to

support Petitioner's conviction, the Michigan Court of

Appeals stated:

We find that there was sufficient evidence presented

of premeditation and deliberation. Defendant told an

investigating officer that he placed the gun in his

pocket before the victim picked him up that evening,

and he confessed to pulling the trigger and shooting

Williams. Defendant also admitted to pointing the gun

in the air before shooting Williams. Furthermore,

Crain testified that defendant and Williams had

previously disputed over stereo speakers, and

defendant admitted that he harbored ill feelings against

Williams. Defendant also shot Williams a second time

in the stomach after driving the car from the scene of

the first gunshot. A reasonable inference may be

drawn from this evidence that defendant planned to

shoot Williams before defendant entered the car and

that he had an opportunity to "take a second look"

before shooting. A reasonable inference also may be

drawn from this evidence that defendant deliberately

intended to kill Williams. When viewed in a light most

favorable to the prosecution, we find ample evidence

US District Court ruling, 3/8/01 A31

that the elements of premeditation and deliberation

were proven beyond a reasonable doubt. |

People v. Scott, No. 182235, *2 (Mich. Ct. App. Jan.

21, 1997).

Having carefully reviewed the record, this Court cannot

conclude that the Michigan Court of Appeals' determination

that the facts demonstrated Petitioner's intent to kill and

premeditation and deliberation is unreasonable. The

testimony presented at trial revealed that Petitioner armed

himself prior to meeting with Williams and Crain, that he

spoke of robbing Williams, that he and Williams had past

disagreements, that he pointed his weapon at Williams, pulled

the trigger, and shot Williams in the head, and that he shot

Williams a second time in the stomach after leaving the scene

of the first shooting. See Trial Tr., vol. II, pp. 71, 104-08,

136, 181-85. Given this evidence, a rational trier of fact could

find that the prosecution established beyond a reasonable

doubt that Petitioner acted with intent to kill, as well as

premeditation and deliberation.

Petitioner's insufficient evidence claim essentially

challenges the inferences that the jury drew from the

testimony presented at trial and challenges the weight to be

accorded certain pieces of evidence. However, it is

well-settled that "[a] federal habeas corpus court faced with a

record of historical facts that supports conflicting inferences

must presume - even if it does not affirmatively appear in the

A 32 US District Court ruling, 3/8/01

record - that the trier of fact resolved any such conflicts in

favor of the prosecution, and must defer to that resolution."

Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983). Given

the evidence presented at trial, including Petitioner's own

statement, this Court finds that a rational trier of fact could

have found that Petitioner acted with the intent to kill and

premeditation and deliberation so as to support his

first-degree murder conviction beyond a reasonable doubt.

Petitioner is therefore not entitled to relief on this claim.

B. _Prosecutorial Misconduct Claim

Petitioner also contends that he is entitled to habeas

relief because the prosecutor engaged in misconduct by

shifting the burden of proof to the defense. Specifically,

Petitioner objects to the prosecutor's argument that "there's

no evidence of heat of the moment, heat of passion, of some

sudden unexplainable impulse." See Trial Tr., vol. I, p. 212.

Respondent asserts that this claim is barred by - procedural

default and otherwise lacks merit. This Court agrees.

Federal habeas relief may be precluded on claims that a

petitioner has not presented to the state courts in accordance

with the state's procedural rules. See Wainwnight v. Sykes,

433 U.S. 72, 85-87 (1977); Couch v. Jabe, 951 F.2d 94, 96

(6th Cir. 1991). In Wainwright, the United States Supreme

Court explained that a petitioner's procedural default in the

state courts will preclude federal habeas review if the last

US District Court ruling, 3/8/01 A 33

State court rendering a judgment in the case rested its

judgment on the procedural default. 433 U.S. at 85. In such a

case, a federal court must determine not only whether a

petitioner has failed to comply with state procedures, but

also whether the state court relied on the procedural default

or, alternatively, chose to waive the procedural bar. "A

procedural default does not bar consideration of a federal

claim on either direct or habeas review unless the last state

court rendering a judgment in the case ‘clearly and expressly'

States that its judgment rests on a state procedural bar."

Harris v. Reed, 489 U/S. 255, 263-64 (1989). The last

explained state court judgment should be used to make this

determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-05

(1991). If the last state judgment is a silent or unexplained

denial, it is presumed that the last reviewing court relied upon

the last reasoned opinion. Id.

Here, the Michigan Court of Appeals rendered the last

reasoned opinion. In dismissing Petitioner's claim, the Court

of Appeals relied upon a state procedural bar, explaining:

Because defendant did not object at trial to any of the

prosecutor's remarks, we will consider this issue only

to redress a miscarriage of justice or if a cautionary

instruction could not have cured the error .... The

record reveals that the prosecutor merely argued that

defendant intended to kill in a cold-blooded,

premeditated, and deliberate manner. Such an

A 34 US District Court ruling, 3/8/01

argument amounts to nothing more than discrediting

the defense, which is proper .... Moreover, the trial

court's instruction regarding the burden of proof cured

any possible prejudicial effect from the prosecutor's

closing argument.

People v. Scott, No. 182235, *3 (Mich. Ct. App. Jan. 21,

1997); see also People v. Scott (on remand), No. 182235, *3,

n. 1 (Mich. Ct. App. Aug. 18, 1998).

The failure to make a contemporaneous objection is a

recognized and firmly-established independent and adequate

state law ground for refusing to review trial errors. Coleman

v. Thompson, 501 U.S. 722, 750-51 (1991). Moreover, a

state court does not waive a procedural default by looking

beyond the default to determine if there are circumstances

warranting review on the merits. Paprocki v. Foltz, 869 F.2d

281, 285 (6th Cir. 1989). Nor does a state court fail to

sufficiently rely upon a procedural default by ruling on the

merits in the alternative. See McBee v. Abramajtys, 929 F.2d

264, 267 (6th Cir. 1991). The Court of Appeals dismissed

Petitioner's prosecutorial misconduct claim based upon

procedural default -his failure to object at trial.

A state prisoner who fails to comply with a state's

procedural rules waives the right to federal habeas review

absent a showing of cause for noncompliance and actual

prejudice resulting from the alleged constitutional violation, or

a showing of a fundamental miscarriage of justice. Coleman,

US District Court ruling, 3/8/01 A 35

501 U.S. at 753; Gravley v. Mills, 87 F.3d 779, 784-85 (6th

Cir. 1996).

Petitioner neither alleges nor establishes cause to excuse

his procedural default. Rather, he claims that because part of

the prosecutor's closing argument was not transcribed, it is

unknown whether an objection was made. At the evidentiary

hearing before the trial court, however, the prosecutor

testified that the defense did not object to his closing

argument. Defense counsel did not refute this testimony. See

3/30/98 Hrg. Tr., p. 12. Petitioner also appears to have

acknowledged on direct appeal that no objection was made.

See Appellant's Brief on Appeal, p. 12.

Additionally, Petitioner cannot demonstrate actual

prejudice, or that a fundamental miscarriage of justice has

occurred. The United States Supreme Court has stated that

prosecutors must "refrain from improper methods calculated

to produce a wrongful conviction." Berger v. United States,

295 U.S. 78, 88 (1935). To prevail on a prosecutorial

misconduct claim, a habeas petitioner must demonstrate that

the prosecutor's remarks "so infected the trial with unfairness

as to make the resulting conviction a denial of due process."

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

Factors to be considered in weighing the extent of a

prosecutor's misconduct are:

the degree to which the remarks complained of have a

tendency to mislead the jury and to prejudice the

A 36 US District Court ruling, 3/8/01

accused; whether they are isolated or extensive;

whether they were deliberately or accidentally placed

before the jury, and the strength of the competent

proof to establish the guilt of the accused.

Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997)

(quoting Serra v. Michigan Dept. Of Corrections, 4 F.3d

1348, 1355-56 (6th Cir. 1993)). "[T]o constitute the denial of

a fair trial, prosecutorial misconduct must be ‘so pronounced

and persistent that it permeates the entire atmosphere of the

trial,’ or ‘so gross as probably to prejudice the defendant."" Id.

(citations omitted). Even assuming that the prosecution erred

in this case, such conduct was not so pronounced or

persistent as to deprive Petitioner of a fair trial. Moreover,

the trial court instructed the jurors on the burden of proof,

see Trial Tr. vol. Il, pp. 215, 221-24; vol. 111, pp. 4-6, and

informed them that if one of the lawyers said something

differently, they were to follow the judge's instructions. See

Trial Tr., vol. 11, p. 214. Petitioner has thus: failed to

establish that the alleged prosecutorial misconduct deprived

him of a fair trial and is not entitled to relief on this claim.

C. Transcription Error Claim

Petitioner next claims that he is entitled to habeas relief

because a portion of the prosecutor's closing argument was

not transcribed due to error. Due process requires that a

US District Court ruling, 3/8/01 A 37

defendant in a criminal case be provided with a transcript of a

prior proceeding when that transcript is needed for an

effective defense or appeal. See, e.g., Britt v. North Carolina,

404 U.S. 226, 227 (1971). However, a state prisoner seeking

federal habeas must demonstrate prejudice due to a missing

transcript before a constitutional violation of a right to a fair

appeal will be found. Bransford v. Brown, 806 F.2d 83, 86

(6th Cir. 1986); accord White v. Florida, 939 F.2d 912, 914

(11th Cir. 1991); Mitchell v. Wyrick, 698 F.2d 940, 941-42

(8th Cir. 1983).

On remand in this case, the trial court conducted an

evidentiary hearing on the missing portions of the

prosecution's closing argument. The Michigan Court of

Appeals described those proceedings as follows:

A hearing was held on April 27, 1998 in the lower

court and testimony was taken from the original trial

prosecutor and defendant's original trial counsel. On

May 4, 1998, the trial court order was filed indicating

that the prosecutor ‘stated on the record the closing

argument that he presented to the jury during the

trial.’

o 2k

The prosecutor testified at the evidentiary hearing

that he prepared a summary of his closing argument,

and he relied on those notes in reconstructing the

record. The prosecutor also reviewed the trial

transcripts. Defense counsel objected to the use of the

A 38 US District Court ruling, 3/8/01

prosecutor's notes in reconstructing the record

because the notes did not have a case caption, were

not dated, and were not signed. The trial court,

however, overruled the objection because the

prosecutor testified that the notes were in his

handwriting and were created the day before or the

day of the actual closing argument. Further, the notes

had always been maintained the prosecutor's office in

the file he had entitled "People v Cortez Scott."

People v. Scott (on remand), No. 182235, *2 (Mich. Ct.

App. Aug. 18, 1998).

Although the Court of Appeals found that the trial

transcript omits approximately 18 minutes of the

prosecutor's closing argument, it concluded that Petitioner

was not denied a fair trial or appeal, stating:

We have carefully reviewed the prosecutor's

reconstruction of his closing argument and find that

there is no indication that any prosecutorial

misconduct occurred during closing argument at trial.

The United States Supreme Court has held that there

is a presumption of regularity, indicating that the trial

court constitutionally, rather than unconstitutionally,

discharged its state and federal duties. Bute v Illinois,

333 US 640; 68 S Ct 763, 92 L Ed 987 (1947).

Doubts are to be resolved in favor of the integrity,

Gnneenes Bere ~

US District Court ruling, 3/8/01 A39

competence, and proper performance by the trial

court and state's attorney of their official duties. Id...

In this case, the reconstruction of the prosecutor's

closing argument coupled with the presumption of

regularity, shows that the prosecutor's closing

argument at trial was proper and that defendant was

not denied a fair trial.

Id. at *2-3.

This Court finds that the Michigan Court of Appeals'

decision in this regard is consistent with United States

Supreme Court precedent and constitutes a reasonable

application of federal law. Petitioner neither alleges nor

establishes prejudice arising from the trial court's inadvertent

failure to fully transcribe the prosecutor's closing argument.

Petitioner has not shown, nor is there any indication in the

record, that a transcript of the prosecutor's entire closing

argument was necessary for Petitioner to appeal his

convictions. The closing argument was not relevant to most

of Petitioner's claims. Further, having reviewed the

evidentiary hearing transcripts, this Court agrees with the

Michigan Court of Appeals that there is no evidence that

prosecutorial misconduct occurred during closing arguments

at trial. Accordingly, the failure to fully transcribe that

argument cannot be said to have prejudiced Petitioner. See

Norris v. Schotten, 146 F.3d 314, 33233 (6th Cir. 1998).

EE

A 40 US District Court ruling, 3/8/01

Mere speculation that the transcribed testimony was

necessary for a fair appeal precludes a finding of a

constitutional violation by this Court. See Bransford, 806

F.2d at 86. Petitioner is not entitled to habeas relief on this

due process claim.

D. Jury Instruction Claim

Petitioner also claims that he is entitled to habeas

relief because the trial court failed to instruct the jury on

involuntary manslaughter. Respondent asserts that this claim

is barred by procedural default. As noted, the failure to_make

a contemporaneous objection is a _ recognized and

firmly-established independent and adequate state law ground

for refusing to review trial errors. Coleman, 501 U.S. at

750-51. The Michigan Court of Appeals dismissed

Petitioner's jury instruction claim based upon procedural

default -- his failure to request the instruction at trial.

Even assuming that Petitioner can establish cause to

excuse his default, he cannot demonstrate actual prejudice, or

that a fundamental miscarriage of justice has occurred. Under

Michigan law, a defendant may. request and receive

instructions on necessarily included lesser offenses without

regard to the evidence, and on cognate lesser included offenses

if the evidence would support a conviction on the lesser

included offense. See People v. Beach, 429 Mich. 450, 462,

418 N. W.2d 861, 866 (1988). Both voluntary and

involuntary manslaughter are cognate lesser included offenses

US District Court ruling, 3/8/01 A 41

of murder. See People v. Pouncey, 437 Mich. 382, 388, 471

N.W.2d 346 (1991). The trial court is required to give an

instruction for a cognate lesser included offense if: (1) the

principal offense and the lesser offense are of the same Class

or category, and (2) the evidence adduced at trial would

Support a conviction of the lesser offense. See People v.

Hendricks, 446 Mich. 435, 444, 521 N.W.2d 546 (1994).

There must be more than a modicum of evidence; there must

be sufficient evidence that the defendant could be convicted

of the lesser offense. Pouncey, 437 Mich. at 387. Thus, as a

matter of state law, the trial court was not required to give an

involuntary manslaughter instruction absent a defense request

and sufficient evidence to support such a conviction.

Moreover, even assuming that the trial court erred as a

matter of state law, Petitioner is not entitled to relief from

this Court. A question conceming a perceived error of state

law rarely serves as a basis for federal habeas corpus relief;

and does so only when the petitioner is denied fundamental

unfairness. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68

(1991) ("it is not the province of a federal habeas court to

reexamine state court determinations on state law questions").

In Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir. 1990), the

United States Court of Appeals for the Sixth Circuit ruled

that a state court's failure to instruct the jury on a lesser

included offense in a noncapital criminal case is not such a

"fundamental defect as inherently results in a miscarriage of

justice or an omission inconsistent with the rudimentary

A42 US District Court ruling, 3/8/01

demands of fair procedure." Lastly, as noted by the Michigan

Court of Appeals with respect to Petitioner's ineffective

assistance ofcounsel claim, the physical and testimonial

evidence did not reasonably support an _ involuntary

manslaughter instruction. Given the evidence presented at

trial, including James Crain's and Detective Korabik's

testimony, there was sufficient evidence for the jury to find

Petitioner guilty of first-degree murder. Petitioner's jury

instruction claim is thus barred by procedural default, lacks

merit, and does not warrant relief.

E. Ineffective Assistance of Counsel Claim

Petitioner next claims that trial counsel was ineffective

for failing to seek instructions on involuntary manslaughter,

accident, and careless, reckless, or negligent use of a firearm

resulting in death, and for eliciting prejudicial testimony from

James Crain regarding prior disputes between Petitioner and

Williams.

In Strickland v. Washington, 466 U.S. 668 (1984), the

United States Supreme Court set forth a two-pronged test for

determining whether a habeas petitioner has received the

ineffective assistance of counsel. First, a petitioner must

prove that counsel's performance was deficient. This requires

a showing that counsel made errors so serious that he or she

was not functioning as counsel as guaranteed by the Sixth

Amendment. 466 U.S. at 687. Second, the petitioner must

establish that the deficient performance prejudiced the

US District Court ruling, 3/8/01 A 43

defense. Counsel's errors must have been so serious that they

deprived the petitioner of a fair trial or appeal. Id.

With respect to the performance prong, a petitioner

must identify acts that were "outside the wide range of

professionally competent assistance" in order to prove

deficient performance. Id. at 690. The reviewing court's

scrutiny of counsel's performance is highly deferential. Id. at

689.-The court must recognize that counsel is strongly

presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional

judgment. Id. at 690.

To satisfy the prejudice prong under Strickland, a

petitioner must show that "there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694. A

reasonable probability is one that is sufficient to undermine

confidence in the outcome. Id. In Lockhart v. Fretwell, 506

U.S. 364, 369-70 (1993), the United States Supreme Court

observed that "an analysis focusing solely on outcome

determination, without attention to whether the result of the

proceeding was fundamentally unfair or unreliable is

defective." The United States Court of Appeals for the Sixth

Circuit has thus concluded that a reviewing court should

focus on whether counsel's alleged errors "have undermined

the reliability of and confidence in the result." McQueen v.

Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996). "On balance,

the benchmark for judging any claim of ineffectiveness must

A 44 US District Court ruling, 3/8/01

be whether counsel's conduct so undermined the proper

functioning of the adversarial process that the [proceeding]

cannot be relied on as having produced a just result." Id. at

1311-12 (quoting Strickland, 466 U.S. at 686).

l. Failure to Request Jury Instructions

The Michigan Court of Appeals concluded that

counsel was not deficient for failing to request the lesser

offense instructions because the evidence did not support

such instructions. The court stated:

It was essentially defendant's theory that he did not

have the specific intent to commit first-degree murder

because he was intoxicated or high at the time of the

shooting and that Williams was shot as the result of a

struggle over the gun. Defendant gave two versions of

what happened in the car to the police. His second

version was that he pulled the gun out from his

pocket, held the gun in the air, and asked Williams

"what was up" between them. Defendant then claimed

that Williams grabbed his hand, defendant squeezed

the trigger, and the gun went off. This was directly

contrary to defendant's first police statement where

defendant stated that he pulled the gun out of his

pocket, held it up in the air, said to Williams, "What's

up now?" and lowered the gun and shot Williams.

US District Court ruling, 3/8/01 A 45

Defendant's contention that the shooting was

accidental is totally contrary to the evidence

presented. Williams was shot in the right side of his

head, about two inches above the right ear and directly

behind the temple. After Williams was shot in the

head, defendant dumped his body outside of the car

and shot him again in the right abdominal area. We

note that Williams was sitting in the front driver's seat

and defendant was in the back seat of the car. Yet,

Williams was shot in the right side of the head, while a

claim that Williams grabbed defendant's hand would

certainly tend to indicate that Williams would have

turned around and faced defendant. The physical

evidence of the gunshot would simply does not

support this. Moreover, although defendant did. make

one claim that Williams grabbed his hand, his

statement was that he (defendant) squeezed the trigger

and there was no claim in the statement that Williams

caused defendant to squeeze the trigger.

Defense counsel in this case was faced with a choice

between defenses (intoxication, the shooting was

provoked, and accident) with very significant

evidentiary problems. One of defendant's own police

statements, as well as the physical evidence, and the

testimony of James Crain, all supported a first-degree

murder conviction. Defense counsel sought out the

A 46 US District Court ruling, 3/8/01

two defenses, intoxication and provocation, that had

the greatest likelihood of success in considering the

evidence presented. Nothing in the materials before us

suggests that counsel was ‘deficient’ in making this

choice or that the selection significantly affected the

outcome of the trial... .

Therefore, we conclude that defense counsel was not

ineffective for failing to request instructions on

involuntary manslaughter, accident, or careless,

reckless or negligent use of a firearm with death

resulting. The evidence at trial did not support such

instructions.

People v. Scott, No. 182235, *3-4 (Mich. Ct. App. Jan. 21,

1997) (citation omitted).

Having reviewed the record, this Court concludes that

the Michigan Court of Appeals’ decision in this regard is

neither contrary to Strickland nor an unreasonable application

of federal law. Trial counsel's decision to rely upon the

argument that Petitioner was guilty of second-degree murder

or voluntary manslaughter due to his intoxication and/or

provocation was a matter of trial strategy which will not be

second-guessed upon habeas review. See, e.g., Shaba v.

United States, 721 F. Supp. 132, 139 (1989), affd 896 F.2d

554 (6th Cir. 1990) (decision to pursue mistaken identity

defense, rather than attack government's failure to exercise

control over informant, was matter of trial strategy and did

US District Court ruling, 3/8/01 A 47

not support ineffective assistance claim); Johnson v. Morris,

848 F.2d 191, 1988 WL 50639, * 1 (6th Cir. 1988) (counsel

not ineffective for failing to argue that petitioner was guilty of

aggravated assault given primary defense that gun accidentally

discharged during struggle because such an argument would

have compromised strategy for absolution of all guilt).

Petitioner's disagreement with counsel's trial Strategy does

not support an ineffective assistance of counsel claim. See

Strickland, 466 U.S. at 689. Petitioner has not shown that

counsel was ineffective for failing to make arguments or seek

jury instructions which did not comport with the physical

evidence, and much of the testimonial evidence, presented at

trial. Petitioner is not entitled to habeas relief on this claim.

2. Cross-Examination of James Crain

In response to defense questioning, James Crain, testified that

Petitioner and Williams had a disagreement over stereo

speakers four months prior to the fatal shooting and that

Petitioner shot in Williams’ direction during that dispute. See

Trial Tr., vol. II, p. 136. The Michigan Court of Appeals

concluded that counsel's cross-examination of Crain did not

prejudice Petitioner, Stating:

Although counsel's questioning of Crain in this regard

was not wise, in the context of Crain's testimony, it

was not prejudicial to defendant. On direct

A 48 US District Court ruling, 3/8/01

examination, Crain had testified that defendant told

him shortly before the shooting that he could rob

Williams for his goods. Moreover, the prosecutor had

already elicited testimony from the police officer who

took defendant's statement that defendant had told

police about the incident regarding the stereo

speakers. Thus, Crain's testimony was merely

cumulative. Defendant has failed to show that there is

a reasonable probability that, but for counsel's

cross-examination in this regard, the result of the

proceeding would have been different .... There was

ample evidence shown by the prosecutor that

defendant was guilty of first-degree murder.

Id. at 5-6 (citation omitted).

Having reviewed the record, this Court concludes that

the Michigan Court of Appeals' decision is neither contrary

to Strickland nor an unreasonable application of federal law.

As noted by the Michigan Court of Appeals, Detective

Korabik testified about previous disputes between Petitioner

and Williams, such that Crain's testimony was somewhat

cumulative. More importantly, however, Petitioner cannot

establish that he was prejudiced by counsel's conduct given

the evidence establishing his guilt of first-degree murder.

Petitioner is not entitled to habeas relief on his ineffective

assistance of counsel claims.

US District Court ruling, 3/8/01 A 49

F. Cumulative Error Claim

Given this Court's determination that Petitioner's

constitutional rights were not violated during trial and that

none of Petitioner's individual claims warrant habeas relief,

the Court finds that Petitioner's claim that the cumulative

effect of the alleged errors violated his due process rights is

without merit. Petitioner is not entitled to habeas relief on

this claim.

V. Conclusion ©

For the reasons stated, this Court concludes that Petitioner is

not entitled to federal habeas relief on the claims presented.

Accordingly,

IT IS ORDERED that Petitioner's request for habeas

relief is DENIED and the petition for writ of habeas corpus is

DISMISSED WITH PREJUDICE.

VICTORIA A. ROBERTS

UNITED STATES DISTRICT JUDGE

DATED: 8 —-MAR 2001