UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

GARY LEE ROBINSON, 

 Petitioner, 

 CASE NO. 14-13512 

v. 

 HONORABLE VICTORIA A. ROBERTS 

KENNETH McKEE, 

 Respondent. 

___________________________/ 

OPINION AND ORDER

DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS,

GRANTING IN PART A CERTIFICATE OF APPEALABILITY, 

AND GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS

 This matter came before the Court on petitioner Gary Lee Robinson’s pro se habeas 

corpus petition, which challenges Petitioner’s convictions for first-degree murder, Mich. Comp. 

Laws § 750.316(1)(a), felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and 

possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. 

Petitioner alleges as grounds for relief that: (1) his incriminating statement to the police was 

involuntary and inadmissible at trial; (2) the state trial court violated his constitutional right to a 

public trial; (3 - 4) his trial attorney was ineffective for failing to (a) object to the closure of the 

courtroom and (b) advise him of his right to testify at an evidentiary hearing; and (5) appellate 

counsel was ineffective for failing to investigate or raise a significant and obvious claim about 

trial counsel. The State urges the Court to deny the petition because Petitioner procedurally 

defaulted two of his claims and because the state-court decisions were objectively reasonable. 

The Court agrees that Petitioner’s claims do not warrant habeas relief. Accordingly, the petition 

will be denied. 
2 

I. Background

 The county prosecutor initially charged Petitioner with four crimes: first-degree, 

premeditated murder, felon in possession of a firearm, carrying a concealed weapon, and 

possession of a firearm during the commission of, or attempt to commit, a felony. The charges 

arose from the fatal shooting of Gregory Ingram in Flint, Michigan on February 26, 2010. In a 

pretrial statement to the police, Petitioner admitted that he fired his assault rifle at Ingram about 

ten times. Petitioner’s pretrial attorney moved to suppress Petitioner’s statement, but the trial 

court denied the motion after conducting an evidentiary hearing. 

 A different attorney represented Petitioner at trial in Genesee County Circuit Court. 

Petitioner was tried with co-defendants Dequeze Dixon and Calvin LeSears, but each defendant 

had his own jury. The state appellate court accurately summarized the facts as follows: 

The primary witness was Jason Sutton, who was present during the murder but 

uninvolved. He testified that he knew Robinson and Dixon already at the time, 

but he discovered LeSears’s identity later. Sutton testified that he was picked up 

by defendants while walking home. Dixon was driving a vehicle owned by his 

girlfriend, Devonda Jiles. Either Dixon or Robinson told Sutton, “If we didn’t 

know who you was, we were going to get you.” They drove past the victim, at 

which point Dixon said, “There’s Greg, let’s get on him.” Robinson got out of the 

car first, and then Dixon turned the car around and parked, whereupon Dixon and 

LeSears also got out. Sutton remained in the vehicle using his telephone. 

Sutton testified that he heard a barrage of gunfire from multiple guns: an assault 

rifle, a shotgun, and a handgun. He saw all three defendants outside shooting the 

victim. A medical examination would later identify the victim’s cause of death as 

multiple gunshot wounds from at least three different kinds of guns. When 

defendants returned to the vehicle, Sutton observed Robinson with an assault rifle, 

Dixon with a shotgun, and LeSears with a handgun. Dixon advised Sutton that 

they would kill him if he told anyone about the events of the evening. They then 

dropped Sutton off at his house. Sutton continued to associate with defendants out 

of fear that they would believe he had told authorities about the shooting. A few 

weeks later, Sutton was again in the same vehicle with Dixon and Sutton’s cousin, 

when police attempted to pull the vehicle over, apparently for unrelated reasons. 
3 

All of the occupants jumped out and fled; Sutton was the only one apprehended. 

He was taken into custody for fleeing and eluding, and Jiles’s car was impounded. 

When Jiles discovered that her car had been impounded, she falsely informed 9–

1–1 and a police officer that her vehicle had been stolen. While incarcerated, 

Sutton asked to talk to the police about the victim’s murder. After Sutton was 

interviewed, Robinson was arrested two days later, and Dixon was arrested later 

that same day. Sutton subsequently picked LeSears out of a photographic lineup 

as the third individual, asserting that he was about 80 percent certain. LeSears was 

arrested about a month later for an unrelated matter, after which Sutton identified 

LeSears with certainty out of a physical lineup. 

 People v. Robinson, No. 304936, 2013 WL 4866316, at *1 (Mich. Ct. App. Sept. 12, 2013) 

(unpublished). 

 The prosecutor’s theory was that Petitioner caused Ingram’s death or aided and abetted 

his co-defendants in killing Ingram. Petitioner did not testify or present any witnesses. His 

theory of the case was that Ingram was not credible and that his statements to the police were 

involuntary because the police interrogated him over a period of approximately fourteen hours 

and lied to him during the interrogation. 

 The jury was unable to reach a verdict on the third count (carrying a concealed weapon). 

The prosecutor then dismissed that count, and the jury found Petitioner guilty, as charged, of 

first-degree murder, felon in possession of a firearm, and possession of a firearm during the 

commission of a felony. On June 21, 2011, the trial court sentenced Petitioner to life 

imprisonment for the murder conviction, a concurrent term of two to five years in prison for the 

felon-in-possession conviction, and a consecutive term of two years for the felony-firearm 

conviction with credit for 459 days already spent in custody. 

 Petitioner argued in an appeal of right that: (1) his statement to the police was 

inadmissible at trial because the police violated his constitutional right against self-incrimination; 
4 

(2) the exclusion of the public from his trial violated his constitutional right to a public trial; and 

(3) defense counsel was ineffective for failing to object to the closure of the courtroom to the 

public. The Michigan Court of Appeals rejected these claims and affirmed Petitioner’s 

convictions in a per curiam opinion. See id. Petitioner raised the same three claims in the 

Michigan Supreme Court, which denied leave to appeal on January 31, 2014. See People v. 

Robinson, 495 Mich. 936; 843 N.W.2d 202 (2014) (table). 

 On September 3, 2014, Petitioner signed and dated his habeas corpus petition, and on 

September 9, 2014, the Clerk of the Court filed the petition. The grounds for relief set forth in 

the initial petition are the same three claims that Petitioner raised on direct appeal from his 

convictions. 

 The State argued in an answer to the petition that Petitioner procedurally defaulted his 

second claim (denial of the right to a public trial) and that his other claims lack merit. Petitioner 

moved to supplement his petition and to stay his case while he exhausted state remedies for two 

new claims about his first trial attorney and his appellate attorney. On May 5, 2015, the Court 

granted Petitioner’s motions and closed this case for administrative purposes. 

 Petitioner subsequently filed a pro se motion for relief from judgment in the state trial 

court. He claimed that: (1) his first attorney failed to advise him of his right to testify at the 

evidentiary hearing on his motion to suppress his custodial statement, and (2) his appellate 

attorney failed to investigate and raise his claim about trial counsel. The trial court denied 

Petitioner’s motion because Petitioner failed to satisfy the “cause and prejudice” requirements of 

Michigan Court Rule 6.508(D)(3)(a) and (b) and because the motion lacked merit. See People v. 

Robinson, No. 10-26762-FC (Genesee Cty. Cir. Ct. July 13, 2015) (unpublished). 
5 

 Petitioner appealed the trial court’s decision without success. The Michigan Court of 

Appeals denied leave to appeal for failure to establish entitlement to relief under Michigan Court 

Rule 6.508(D). See People v. Robinson, No. 328876 (Mich. Ct. App. Nov. 4, 2015) 

(unpublished). On September 27, 2016, the Michigan Supreme Court denied leave to appeal for 

the same reason. See People v. Robinson, 500 Mich. 864; 884 N.W.2d 791 (2016) (table). 

 On December 6, 2016, Petitioner returned to federal court and filed a motion to re-open 

this case. Although he did not file a separate amended petition, the motion includes a brief, 

which addresses the three claims that Petitioner raised in his initial petition and the two new 

claims that he raised during post-appellate proceedings in state court. The State filed a 

supplemental answer in which it argued that Petitioner procedurally defaulted his claim about his 

pretrial attorney and that his claim about appellate counsel lacked merit. 

II. Standard of Review

 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires habeas 

petitioners who challenge “a matter ‘adjudicated on the merits in State court’ to show that the 

relevant state court ‘decision’ (1) ‘was contrary to, or involved an unreasonable application of, 

clearly established Federal law,’ or (2) ‘was based on an unreasonable determination of the facts 

in light of the evidence presented in the State court proceedings.’ ” Wilson v. Sellers, 138 S. Ct. 

1188, 1192 (2018) (quoting 28 U.S.C. § 2254(d)). “[A] federal habeas court may not issue the 

writ simply because that court concludes in its independent judgment that the relevant state-court 

decision applied clearly established federal law erroneously or incorrectly. Rather, that 

application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). 

“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,’ Lindh v. 
6 

Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court decisions be given the 

benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. 

Lett, 559 U.S. 766, 773 (2010). 

 “A state court’s determination that a claim lacks merit precludes federal habeas relief so 

long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” 

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 

664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show 

that the state court’s ruling on his or her claim “was so lacking in justification that there was an 

error well understood and comprehended in existing law beyond any possibility for fairminded 

disagreement.” Id. at 103. A state-court’s factual determinations are presumed correct on 

federal habeas review, 28 U.S.C. § 2254(e)(1), and review is “limited to the record that was 

before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 

III. Analysis

A. Petitioner’s Pretrial Statement to the Police 

 Petitioner alleges that the prosecutor violated his right to a fair trial by introducing in 

evidence his pretrial statement to the police. Petitioner contends that the police violated his Fifth 

Amendment right not to incriminate himself by continuing to interrogate him after he said he 

was done and had nothing to say. He further alleges that the police coerced him into confessing 

by isolating him and repeatedly interviewing him. 

 The Michigan Court of Appeals summarized the facts leading to Petitioner’s confession 

as follows: 
7 

[D]efendant was read his Miranda1 rights, and defendant waived those rights. 

The interviewing officer asked defendant some preliminary questions to establish 

defendant’s identity and coherence. The first interview lasted approximately three 

hours and ended when defendant “denied any knowledge of the homicide, stated 

that he wasn’t involved.” Although defendant placed his head down on the table 

and appeared tired, defendant continued to be questioned. At the end of that 

interview, defendant was returned to a holding cell. 

Defendant was given some food and was interviewed a second time after the 

police continued their investigation and obtained more information. Defendant 

was not re-read his Miranda rights, but he was advised that he was still under 

arrest and he verified that he recalled and understood his rights. Robinson was 

specifically asked about the homicide and informed that Dixon had been arrested. 

Defendant stated, “I’m done, I got nothing to say.” The police continued to 

question defendant, noting that Dixon and Sutton had both given statements that 

Robinson participated in the homicide. Defendant did not specifically ask to 

terminate the questioning or request an attorney, but he eventually said, “I’m 

ready to go and I’m done with it.” The interview was terminated after less than 

half an hour, after which an evidence technician took defendant’s shoes into 

evidence. 

Later that night, while the police officer was interviewing Dixon, Robinson asked 

to talk to the police officer. Robinson confirmed that he understood his rights and 

made an inculpatory statement regarding his involvement in the Ingram homicide 

and verbally provided a statement that was written out by the interviewing officer. 

Robinson then added information pertaining to the location of the gun used during 

the homicide, indicated his willingness to take police to the location, and signed 

the statement. In his own hand, Robinson also wrote out apologies to the 

prosecutor and Ingram’s aunt. Following an inquiry regarding his treatment, 

Robinson agreed to write down that he had been treated fairly. 

Robinson, 2013 WL 4866316, at *2 (footnote in original as note 2). 

 The officer in charge of the case, Sergeant Mitch Brown, testified at the pretrial 

evidentiary hearing on Petitioner’s motion to suppress his statement 

that Robinson . . . never requested an attorney or to stop the interviews. He 

acknowledged that he was not always truthful with Robinson during the 

interviews, in part, suggesting that Dixon and Sutton had “put it all on him.” He 

also acknowledged the possibility that he raised his voice during the interview. 

                                                            

1

  Miranda v. Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L.Ed.2d 694 (1966). 
8 

He opined that a suspect’s indication that he refused to answer a specific question 

did not require termination of the interview. 

Id. The trial court denied Petitioner’s motion to suppress his statement, and at trial, the 

prosecutor played a videotape of the three custodial interviews for the jury. The prosecutor also 

provided the jury with a transcript of the interviews. 

 Petitioner raised his current claim on direct review of his convictions. The Michigan 

Court of Appeals adjudicated his claim on the merits and concluded that Petitioner’s statement to 

the police was voluntary and admissible. 

 1. Miranda

 Petitioner claims that the police violated his right not to incriminate himself by not 

advising him of his constitutional rights before the second and third interviews and by continuing 

to interrogate him after he indicated that he had nothing more to say. Petitioner also asserts that 

the waiver of his rights was not voluntary because he was held in a cell for an entire day and was 

subjected to repeated and prolonged questioning and coercive behavior. 

 a. Clearly Established Federal Law

 The Fifth Amendment to the United States Constitution provides that “[n]o person shall 

be . . . compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. 

“To give force to the Constitution’s protection against compelled self-incrimination, the 

[Supreme] Court established in Miranda [v. Arizona, 384 U.S. 436 (1966)] ‘certain procedural 

safeguards that require police to advise criminal suspects of their rights under the Fifth and 

Fourteenth Amendments before commencing custodial interrogation.’” Florida v. Powell, 559 

U.S. 50, 59 (2010) (quoting Duckworth v. Eagan, 492 U.S. 195, 201 (1989)). “Prior to any 

questioning, the person must be warned that he has a right to remain silent, that any statement he 
9 

does make may be used as evidence against him, and that he has a right to the presence of an 

attorney, either retained or appointed.” Miranda, 384 U.S. at 444. 

After the warnings are given, if the suspect indicates that he wishes to remain 

silent, the interrogation must cease. Id., at 473–474, 86 S.Ct. 1602. Similarly, if 

the suspect states that he wants an attorney, the interrogation must cease until an 

attorney is present. Id., at 474, 86 S.Ct. 1602. Critically, however, a suspect can 

waive these rights. Id., at 475, 86 S.Ct. 1602. To establish a valid waiver, the 

State must show that the waiver was knowing, intelligent, and voluntary under the 

“high standar[d] of proof for the waiver of constitutional rights [set forth in] 

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).” Id., at 

475, 86 S.Ct. 1602. 

Maryland v. Shatzer, 559 U.S. 98, 104 (2010). One form of waiver occurs when “the accused 

himself initiates further communication, exchanges, or conversations with the police.” Edwards 

v. Arizona, 451 U.S. 477, 484–85 (1981). 

 b. The Advice of Rights

 It is clear from the record that Sergeant Brown advised Petitioner of his constitutional 

rights during the first interview and that Petitioner waived his rights and voluntarily agreed to 

speak with Sergeant Brown at the interview. See 3/18/10 Interview Tr. at 15-16 (Part One), ECF 

No. 7-2, PageID. 147-48. Although Petitioner did not sign a written waiver of his rights, “there 

is no requirement that Miranda rights can be waived only in writing.” United States v. Stevens, 

445 F.2d 304, 305 (6th Cir. 1971). 

 Sergeant Brown did not re-read Petitioner’s constitutional rights to him before the second 

and third interviews. However, he did remind Petitioner of their prior discussion regarding his 
10 

constitutional rights, Petitioner claimed to remember the prior discussion,2 and the length of the 

time between the interviews was not excessive. The second interview occurred about five and a 

quarter hours after the first interview, and the third interview occurred about three and a half 

hours after the second interview. 

 “[C]ourts have generally rejected a per se rule as to when a suspect must be readvised of 

his rights after the passage of time or a change in questioners.” United States v. Andaverde, 64 

F.3d 1305, 1312 (9th Cir. 1995). In fact, a number of federal circuit courts of appeals “have 

ruled that re-warning is not required simply because time has elapsed.” United States v. 

Weekley, 130 F.3d 747, 751 (6th Cir. 1997) (collecting cases); see also United States v. Pruden, 

398 F.3d 241, 246 (3d Cir. 2005) (“Miranda . . . does not necessarily require that a suspect be 

warned anew each time he is questioned.”) (citing Guam v. Dela Pena, 72 F.3d 767, 769–70 (9th 

Cir. 1995) (finding that a fifteen-hour delay between waiver and statement does not require new 

warning and waiver)). 

 Even a three-day delay between the advice of rights and a subsequent interrogation is 

acceptable if the suspect was clearly aware of his rights, understood those rights, was questioned 

by the same police officer who reminded him of his rights, and there is no evidence of coercion 

or promises or that anything affected the suspect’s understanding of his rights. United States v. 

White, 68 F. App’x 535, 538 (6th Cir. 2003). Petitioner clearly was aware of, and understood, 

                                                            

2

  See 3/18/10 Interview Tr. (Part Two) at 2, ECF No. 7-3, PageID. 209; 3/18/10 Interview Tr. 

(Part Three) at 2, ECF No. 7-4, PageID.219. 
11 

his rights. Sergeant Brown questioned him during each of the interviews3 and reminded 

Petitioner of his rights, there is no evidence that anything affected Petitioner’s understanding of 

his rights. He also was not coerced or promised anything other than an explanation to the 

prosecutor. Therefore, Petitioner’s confession was not involuntary simply because Sergeant 

Brown did not re-read his constitutional rights to him before the second and third interviews. 

 c. The Waivers

 Petitioner maintains that he did not voluntarily waive his constitutional rights. The 

record, however, suggests otherwise. 

 Before the first interview, Sergeant Brown read Petitioner’s constitutional rights to him. 

Petitioner indicated that he understood his rights and was familiar with them. Sergeant Brown 

then asked Petitioner whether he wished to waive his right to have an attorney and wanted to talk 

with Brown. Petitioner answered, “I’ll talk to you.” See 3/18/10 Interview Tr. (Part One) at 15-

17, ECF No. 7-2, PageID 147-49. This was a clear waiver of the rights to counsel and to remain 

silent. 

 Before the second interview, Sergeant Brown reminded Petitioner that the rights 

remained in effect, and Petitioner claimed to remember being advised of his rights. He did not 

object to being questioned, and he did not request an attorney or refuse to talk with Sergeant 

Brown. See 3/18/10 Interview Tr. (Part Two) at 2, ECF No. 7-3, PageID. 209. 

                                                            

3

  Sergeant Devon Bernritter assisted Sergeant Brown during the first and second interviews. 

Sergeant Jeff Collins and an ATF agent were present with Sergeant Brown during the third 

interview. 
12 

 “An express written or oral statement of waiver of the right to remain silent or of the right 

to counsel . . . is not inevitably either necessary or sufficient to establish waiver.” North 

Carolina v. Butler, 441 U.S. 369, 373 (1979). While “mere silence is not enough,” “[t]hat does 

not mean that the defendant’s silence, coupled with an understanding of his rights and a course 

of conduct indicating waiver, may never support a conclusion that a defendant has waived his 

rights.” Id. “[I]n at least some cases waiver can be clearly inferred from the actions and words 

of the person interrogated.” Id. 

 Petitioner’s acknowledgment of his rights, his understanding of his rights, and his 

willingness to speak with Sergeant Brown are indications that he voluntarily waived his 

constitutional rights before the second interview. Although he subsequently stated during the 

second interview that he wanted to home, that he was “done,” and that he had nothing to tell the 

officers, those comments were ambiguous. He could have meant that he was innocent and had 

nothing to confess. Moreover, when Sergeant Brown subsequently asked Petitioner whether he 

wanted to hear what the officers had to say, Petitioner answered, “Yeah.” See 3/18/10 Interview 

Tr. (Part Two) at 5-6, ECF No. 7-3, PageID. 212-13. This was a voluntary waiver of the right to 

remain silent and to terminate the interview. 

 Even if Petitioner’s comments during the second interview constituted an invocation of 

the right to remain silent, Petitioner did not confess to his involvement in the murder during that 

interview. So, there was no confession to suppress. The interview ended when Petitioner 

indicated that he was ready to go to the county jail and was “done with this.” Id. at 9-10, PageID 

216-17. 
13 

 Petitioner himself initiated the third interview. He also indicated that he remembered his 

rights. See 3/18/10 Interview Tr. (Part Three) at 1-2, ECF No. 7-4, PageID. 218-19. By 

initiating the interview and acknowledging his rights, Petitioner waived his rights to remain 

silent and to have an attorney present. See Wyrick v. Fields, 459 U.S. 42, 47 (1982) (concluding 

that, by requesting a polygraph examination, the suspect initiated the interrogation and waived 

his rights not to proceed without an attorney present and not to be questioned about the crime 

that he was suspected of committing). 

 The Court concludes that Petitioner waived his rights to remain silent and to have an 

attorney present during the interviews. 

2. The Voluntariness of the Confession

 The remaining question is whether the police coerced Petitioner into waiving his rights 

and making a confession. Petitioner contends that the police coerced his statement by keeping 

him in a holding cell for an entire day, interviewing him three times that day, and failing to read 

his constitutional rights to him before the second and third interviews. Although Petitioner 

ultimately initiated the third interview and confessed to shooting the victim, he asserts that his 

request to speak with the police after the second interview was the only way he could change his 

situation. 

a. Clearly Established Federal Law 

 Confessions that result from a police interrogation “must be free and voluntary” to be 

admissible at trial. Bram v. United States, 168 U.S. 532, 542 (1897) (quoting 3 Russ. Crimes 

(6th Ed.) 478). The test for voluntariness of a confession is whether 
14 

“the confession [is] the product of an essentially free and unconstrained choice by 

its maker[.] If it is, if he has willed to confess, it may be used against him. If it is 

not, if his will has been overborne and his capacity for self-determination 

critically impaired, the use of his confession offends due process.” 

Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973) (quoting Culombe v. Connecticut, 367 

U.S. 568, 602 (1961)). When determining whether a defendant’s will was overborne in a 

particular case, courts must assess 

the totality of all the surrounding circumstances – both the characteristics of the 

accused and the details of the interrogation. Some of the factors taken into 

account have included the youth of the accused, his lack of education, or his low 

intelligence, the lack of any advice to the accused of his constitutional rights, the 

length of detention, the repeated and prolonged nature of the questioning, and the 

use of physical punishment such as the deprivation of food or sleep. 

Id. at 226 (citations omitted). “In a federal habeas action, the burden of proving that the 

confession was involuntary rests with the petitioner,” Boles v. Foltz, 816 F.2d 1132, 1136 (6th 

Cir. 1987) (citing Jurak v. Estelle, 623 F.2d 929, 937 (5th Cir. 1980)), and “voluntariness need 

only be proven by a preponderance of the evidence.” Id. (citing Lego v. Twomey, 404 U.S. 477 

(1972)). 

 b. Application

 The record indicates that the police arrested Petitioner about 7:30 a.m. on March 18, 

2010. He was eighteen years old at the time and a senior in high school with plans to attend 

college the following year. Transcripts of the interview indicate that he was a perceptive young 

man with normal intelligence. 

 The first interview was the longest one. It began at 10:39 a.m. on the day of Petitioner’s 

arrest and ended about four and a quarter hours later at 2:58 p.m. Petitioner claimed to 
15 

understand the rights that he was waiving by speaking with Sergeant Brown, and he admitted to 

having prior experience with the criminal justice system. 

 Petitioner was permitted to use the bathroom, and he did not request any food or drink. 

At one point during the interview, Petitioner said, “I already told y’all what I have to say,” and 

later in the interview he stated that was ready to go to the county jail. But at no time did he 

request an attorney or ask to terminate the interview. He also did not confess to the crime. 

Despite the lengthy interview and Sergeant Brown’s repetitious comments, Petitioner maintained 

that he had nothing to do with the murder and that the police had detained the wrong person. 

 An officer provided Petitioner with a meal about 5:00 p.m., and the second interview 

commenced at 8:15 p.m. That interview lasted only nineteen minutes. At one point, Petitioner 

stated that he wanted to go home, that he was done, and that he had nothing to tell the officers, 

but when the officer asked Petitioner whether he was interested in hearing what the police had to 

say, Petitioner responded, “Yeah.” The interview continued, and it concluded shortly afterward 

at 8:34 p.m. when Petitioner stated that he was ready to go to the county jail and was done with 

the interview. The third and final interview commenced at 11:54 p.m. that day, but Petitioner 

initiated that interview, and as the state court pointed out, “There is no indication that police 

continued any form of interaction with Robinson that improperly influenced his election to 

initiate the third interview or affected its voluntary nature.” Robinson, 2013 WL 4866316, at *3. 

 During the third interview, Petitioner informed the officers that he wanted to tell the truth 

about the crime. He also stated that he wanted the police to hear it from his own mouth and that 

he felt better after explaining what happened on the night of the crime. He offered to write a 
16 

letter to the victim’s aunt and to show the police where he hid his gun. He denied being hungry 

or thirsty, and he claimed that Sergeant Brown had treated him fairly. 

 The Court finds it troubling that Sergeant Brown admittedly lied to Petitioner at times 

during the previous interviews and used deceptive techniques with Petitioner. For example, he 

implied that Dixon had implicated Petitioner in the crime even though Brown had not yet 

interviewed Dixon. See 1/4/11 Walker Hr’g Tr. at 40-41, ECF No. 7-13, PageID. 435-36.

 Nevertheless, while “some types of police trickery can entail coercion,” “trickery is not 

automatically coercion,” United States v. Byram, 145 F.3d 405, 408 (1st Cir. 1998), and an 

officer’s misrepresentation of what another suspect said does not make an otherwise voluntary 

confession inadmissible. Frazier v. Cupp, 394 U.S. 731, 739 (1969). Further, as the Michigan 

Court of Appeals pointed out, Sutton had already implicated Petitioner, and “it was at least 

broadly truthful to tell defendant that the police had evidence from witnesses against him.” 

Robinson, 2013 WL 4866316, at *3. 

 Sergeant Brown also hinted that the prosecutor, the judge, and a jury would be more 

lenient toward Petitioner if he admitted his mistake, demonstrated that he was not a cold-blooded 

killer like “guy number 1,” and showed remorse. See, e.g., 3/18/10 Interview Tr. (Part One), 

ECF No. 7-2 at 31-46, PageID. 163-78. The Michigan Court of Appeals, however, opined that 

suggesting a “defendant may have had lesser culpability is hardly the kind of tactic that would 

undermine an interviewee’s free will.” Robinson, 2013 WL 4866316, at *3. The Federal Court 

of Appeals for the Sixth Circuit reached a similar conclusion in Bray v. Caron, 374 F. App’x 466 

(6th Cir. 2010), stating that, “although police promises of leniency can be objectively coercive in 

certain circumstances, a statement about possible leniency upon cooperation does not render a 
17 

confession unconstitutional.” Id. at 469 (citing United States v. Craft, 495 F.3d 259, 263-64 (6th 

Cir. 2007)). 

 Sergeant Brown also appealed to Petitioner’s emotions by informing him about the 

victim’s surviving relative and the relative’s health problems. However, mere emotionalism 

does not necessarily invalidate a confession. Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir. 

1988). Informing Petitioner that he was going to be booked for first-degree murder, felony 

firearm, and felon in possession of a firearm also did not amount to coercion. See United States 

v. Bautista-Avila, 6 F.3d 1360, 1365 (9th Cir. 1993) (agreeing “that a ‘recitation of the potential 

sentence a defendant might receive’ does not render a statement involuntary”) (quoting United 

States v. Paden, 908 F.2d 1229, 1235 (5th Cir. 1990)). 

 To conclude, the circumstances surrounding Petitioner’s confession indicate that his 

confession was not the result of police coercion. He asked to speak with Sergeant Brown a few 

hours after the second interview and then confessed to the crime without any prompting by the 

police. 

 Even if Petitioner proved police coercion, “he would still not prevail because the alleged 

‘coercion’ was simply insufficient to overbear [his] will.” McCall v. Dutton, 863 F.2d 454, 460 

(6th Cir. 1988). His capacity for self-determination also was not critically impaired, as 

demonstrated by his ability to withstand Sergeant Brown’s tedious interrogation of him during 

the first interview. 
18 

 The state appellate court’s rejection of Petitioner’s claim was not contrary to, or an 

unreasonable application of, clearly established federal law. Petitioner, therefore, has no right to 

relief on his challenge to his confession. 

B. The Right to a Public Trial 

 Petitioner alleges next that the trial court violated his Sixth Amendment right to a public 

trial by closing the courtroom to the public on the fourth day of trial when a cell phone rang. 

Petitioner contends that the trial court could have taken less drastic measures, such as 

confiscating the cell phone or excluding only the offending individual. 

 The Michigan Court of Appeals explained the factual basis for Petitioner’s claim as 

follows: 

At the beginning of [Jason] Sutton’s testimony, the judge heard a ringing 

telephone in the courtroom and stated: 

Who’s got the ringing phone? Whoever’s got it better give it up or 

I’m going to kick everybody out of the courtroom. Who’s got the 

ringing phone? Okay, everybody leave the gallery. You’re gone. 

Everybody’s gone. 

The courtroom was then cleared. When counsel requested to approach, the 

following interaction transpired: 

The Court: This is my courtroom, sir. Everyone will leave. 

Dixon’s Counsel: No. I’m not-I’m not-that’s not my concern. I 

don’t care who’s in the gallery. That’s not my concern. 

The court conducted a bench conference with counsel for approximately two 

minutes before Sutton’s testimony resumed. It appears that no spectators were 

permitted to re-enter the courtroom that day, although it also appears that a 
19 

representative from the media, who had previously requested and obtained 

permission to video record Sutton’s testimony, was permitted to continue to do so. 

On the next day of trial, the restriction regarding spectators was not implemented 

based on the trial court’s permission to counsel to open the courtroom despite the 

lack of seats available, presumably due to the presence of three juries. 

Robinson, 2013 WL 4866316, at *5; see also 4/28/11 Trial Tr. at 98-99, ECF No. 7-21, PageID. 

901-02). 

 The Court of Appeals agreed with Petitioner that closing the courtroom to the public 

violated his right to a public trial. But then the Court of Appeals reviewed Petitioner’s claim for 

“plain error” because Petitioner did not object or assert his right to a public trial during the trial. 

The Court of Appeals ultimately concluded that Petitioner was not entitled to a new trial on his 

claim because he failed to demonstrate that the closure impacted the attorneys’ ability to question 

Jason Sutton or that the closure seriously affected the fairness, integrity, or public reputation of 

the judicial proceeding. Robinson, 2013 WL 4866316, at *5. 

1. Procedural Default

 The State argues that Petitioner procedurally defaulted his claim. In the habeas context, a 

procedural default is “a critical failure to comply with state procedural law.” Trest v. Cain, 522 

U.S. 87, 89 (1997). Under the doctrine of procedural default, “a federal court will not review the 

merits of [a state prisoner’s] claims, including constitutional claims, that a state court declined to 

hear because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 

1, 9 (2012). In this Circuit, 

“[a] habeas petitioner’s claim will be deemed procedurally defaulted if each of the 

following four factors is met: (1) the petitioner failed to comply with a state 

procedural rule; (2) the state courts enforced the rule; (3) the state procedural rule 

is an adequate and independent state ground for denying review of a federal 
20 

constitutional claim; and (4) the petitioner has not shown cause and prejudice 

excusing the default.” [Jalowiec v. Bradshaw, 657 F.3d 293, 302 (6th Cir. 

2011)]. To determine whether a state procedural rule was applied to bar a habeas 

claim, [courts] look “to the last reasoned state court decision disposing of the 

claim.” Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc). 

Henderson v. Palmer, 730 F.3d 554, 560 (6th Cir. 2013). 

 The first three procedural-default factors are easily satisfied here. First, there is a 

relevant state procedural rule: Michigan’s contemporaneous-objection rule, which requires 

defendants in criminal cases to preserve their appellate claims by objecting on the same ground 

in the trial court. People v. Buie, 298 Mich. App. 50, 70-71; 825 N.W.2d 361, 374 (2012). 

Petitioner violated this rule by not objecting at trial to the exclusion of the public from the 

courtroom. 

 Second, the Michigan Court of Appeals enforced the contemporaneous-objection rule by 

reviewing Petitioner’s claim for “plain error affecting [his] substantial rights.” Third, because 

Michigan’s contemporaneous-objection rule is well-established and normally enforced, it is an 

adequate and independent state ground for denying review of a federal constitutional claim. 

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

 The first three procedural-default factors are satisfied. Petitioner, therefore, must show 

“cause” for his procedural error and resulting prejudice. 
21 

2. “Cause and Prejudice4

 Petitioner alleges in his third habeas claim that his trial attorney should have objected to 

the closure of the courtroom. An attorney’s ineffectiveness in failing to preserve a claim for 

review in state court can be “cause” to excuse a procedural default. Edwards v. Carpenter, 529 

U.S. 446, 451 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). “Not just any 

deficiency in counsel’s performance will do, however; the assistance must have been so 

ineffective as to violate the Federal Constitution.” Id. Petitioner must show that his trial 

“counsel’s performance was deficient” and “that the deficient performance prejudiced the 

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court looks to Petitioner’s 

underlying claim about the closure of the courtroom to determine whether trial counsel was 

ineffective for failing to object to the closure. 

 The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal 

prosecutions, the accused shall enjoy the right to a . . . public trial . . . .” U.S. CONST. amend. VI. 

“[T]his right extends to the States,” Presley v. Georgia, 558 U.S. 209, 212 (2010) (citing In re 

Oliver, 333 U.S. 257, 273 (1948)), and under Waller v. Georgia, 467 U.S. 39 (1984), 

the party seeking to close the hearing must advance an overriding interest that is 

likely to be prejudiced, the closure must be no broader than necessary to protect 

that interest, the trial court must consider reasonable alternatives to closing the 

proceeding, and it must make findings adequate to support the closure. 

                                                            

4

  Even though the denial of the right to a public trial is a structural error, Petitioner must show 

that the error prejudiced him. Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir. 2012). 
22 

Waller, 467 U.S. at 48. “[A] violation of the right to a public trial is a structural error,” Weaver 

v. Massachusetts, 137 S. Ct. 1899, 1908 (2017), but “it is subject to exceptions,” id. at 1909, and 

not every public-trial violation leads to a fundamentally unfair trial. Id. at 1911. 

 The interest at stake in Petitioner’s case was the need for a quiet, orderly, and safe 

proceeding without any interruptions or distractions from the spectators. The trial court’s closure 

of the courtroom perhaps was broader than necessary to protect the interest at stake. The court 

could have expelled the offending party or confiscated the cell phone that rang. Nevertheless, 

the courtroom was closed to spectators for only two and a quarter hours on one afternoon of a 

lengthy trial, and a serious incident involving spectators occurred in the courtroom and the 

hallway outside the courtroom on the previous day.5

 Given these circumstances, trial counsel’s 

failure to object to the closure did not amount to deficient performance. 

 Trial counsel’s performance also did not prejudice Petitioner because, as the Michigan 

Court of Appeals pointed out, the courtroom closure did not impact the attorneys’ ability to 

question Sutton. The closure also did not seriously affect the fairness of the trial because Sutton 

testified for most of the following day. At that time all three of the defense attorneys cross-

                                                            

5

  At approximately 11:19 a.m. on the third day of trial, Dequeze Dixon’s mother apparently 

passed out while seated in the back of the courtroom. Dixon’s younger brother, who claimed to 

be a paramedic, attempted to help his mother, but he was taken into custody and not permitted to 

help his mother. Other members of the Dixon family also were detained. Dixon’s attorney 

asked the trial court to discontinue the trial for the day because, according to him, the atmosphere 

in the courthouse was “very highly charged” and there were “raw nerves” in the courtroom. The 

trial court declined to adjourn the proceedings, and the trial continued without incident at 12:05 

p.m. See 4/27/11 Trial Tr. at 70-74, ECF No. 7-20, PageID. 749-53.
23 

examined Sutton, and the prosecution conducted re-direct examination. See 4/29/11 Trial Tr. at 

5-157, ECF No. 7-22, PageID. 999-1151. 

 The Court concludes that Petitioner’s trial counsel was not ineffective for failing to object 

to the closure of the courtroom. Therefore, Petitioner has not shown “cause” for his procedural 

default. The Court need not determine whether the alleged constitutional error prejudiced 

Petitioner, because he has failed to show cause for his failure to comply with state law. Smith v. 

Murray, 477 U.S. 527, 533 (1986); Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000). 

3. Miscarriage of Justice

 In the absence of “cause and prejudice,” a habeas petitioner may pursue a procedurally 

defaulted claim if he can demonstrate that failure to consider his claim will result in a 

fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). “A 

fundamental miscarriage of justice results from the conviction of one who is ‘actually innocent.’ 

” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (citing Carrier, 477 U.S. at 496). “To 

be credible, [a claim of actual innocence] requires [the] petitioner to support his allegations of 

constitutional error with new reliable evidence – whether it be exculpatory scientific evidence, 

trustworthy eyewitness accounts, or critical physical evidence – that was not presented at trial.” 

Schlup v. Delo, 513 U.S. 298, 324 (1995). 

 Petitioner does not support his constitutional claim with new and reliable evidence of 

actual innocence. Therefore, a miscarriage of justice will not result from the Court’s failure to 

address the merits of Petitioner’s claim. His second claim is procedurally defaulted because all 

four factors of a procedurally-defaulted claim are satisfied. 
24 

C. Trial Counsel’s Failure to Object to the Closure of the Courtroom

 In his third ground for relief, Petitioner raises an independent claim about his trial 

attorney’s failure to object to the closure of the courtroom to the public. Petitioner contends that 

counsel’s failure to object was not consistent with prevailing professional standards and that a 

new trial is necessary, given the structural nature of the underlying error. 

 The Michigan Court of Appeals disagreed with Petitioner for two reasons. First, the 

Court of Appeals opined that the result of the trial would not have been different if the courtroom 

had remained open and, therefore, counsel’s failure to object did not affect the outcome of the 

trial. And second, the Court of Appeals stated that it was not unsound trial strategy for counsel 

to decline to object, because the atmosphere in the courtroom apparently was tense and the 

proceedings were seriously disrupted on the previous day. 

 To prevail on his claim here, Petitioner must show that his attorney’s “performance was 

deficient” and “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 

687. 

[W]hen a defendant raises a public-trial violation via an ineffective-assistance-ofcounsel claim, Strickland prejudice is not shown automatically. Instead, the 

burden is on the defendant to show either a reasonable probability of a different 

outcome in his or her case or . . . to show that the particular public-trial violation 

was so serious as to render his or her trial fundamentally unfair. 

Weaver, 137 S. Ct. at 1911. In a habeas case, moreover, review of an ineffective-assistance-ofcounsel claim 

is “doubly deferential,” Cullen v. Pinholster, 563 U.S. 170, 190, 131 S.Ct. 1388, 

179 L.Ed.2d 557 (2011), because counsel is “strongly presumed to have rendered 

adequate assistance and made all significant decisions in the exercise of 

reasonable professional judgment,” Burt v. Titlow, 571 U.S. ––––, ––––, 134 S.Ct. 
25 

10, 17, 187 L.Ed.2d 348 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 

690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); internal quotation marks omitted). 

In such circumstances, federal courts are to afford “both the state court and the 

defense attorney the benefit of the doubt.” Burt, supra, supra, at ––––, 134 S.Ct., 

at 13. 

Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (per curiam). 

 The closing of the courtroom to the public in Petitioner’s case was brief, and it did not 

render Petitioner’s trial fundamentally unfair. Also, because the closure did not affect the 

attorneys’ questioning of Sutton, there is not a reasonable probability that the result of the trial 

would have been different if the trial court had kept the courtroom open to spectators. Therefore, 

Petitioner’s trial attorney was not constitutionally ineffective for failing to object to the closure 

of the courtroom. 

 An objection, in fact, would have been futile, considering the trial court’s response to 

another attorney’s request for a bench conference immediately after the closure. The court 

responded to what it thought was an objection to the closure by saying, “This is my courtroom, 

sir. Everyone will leave.” See 4/28/11 Trial Tr. at 98, ECF No. 7-21, PageID. 901. “[T]he 

failure to make futile objections does not constitute ineffective assistance.” Altman v. Winn, 644 

F. App’x 637, 644 (6th Cir. 2016). 

 Even if the Court had concluded that trial counsel was ineffective, the state court’s 

adjudication of Petitioner’s claim was not unreasonable. Under AEDPA, therefore, Petitioner 

has no right to relief on his claim. 
26 

D. Defense Counsel and the Pretrial Hearing

 Petitioner alleges in his fourth claim that his pretrial attorney failed to inform him of his 

right to testify at the evidentiary hearing on his motion to suppress his custodial statement. 

Petitioner apparently wanted to testify that, before his third interview with the police, he asserted 

his right to counsel when speaking with Sergeant Guerro. Petitioner blames his pretrial attorney 

for not calling Sergeant Guerro as a witness at the hearing and for not advising Petitioner of his 

right to testify, and the necessity of testifying, at the hearing. 

 The trial court rejected Petitioner’s claim during the post-appellate proceedings, in part, 

because Petitioner failed to raise his claim on direct appeal. The State, therefore, argues that 

Petitioner procedurally defaulted his claim. 

1. Procedural Default

 The state procedural rule at issue is Michigan Court 6.508(D)(3), which reads in relevant 

part as follows: 

(D) Entitlement to Relief. The defendant has the burden of establishing 

entitlement to the relief requested. The court may not grant relief to the defendant 

if the motion 

. . . . 

(3) alleges grounds for relief, other than jurisdictional defects, 

which could have been raised on appeal from the conviction and 

sentence or in a prior motion under this subchapter, unless the

defendant demonstrates 

(a) good cause for failure to raise such grounds on 

appeal or in the prior motion, and 
27 

(b) actual prejudice from the alleged irregularities 

that support the claim for relief. 

Mich. Ct. R. 6.508(D)(3). 

 Petitioner violated this rule by not raising his claim about his pretrial attorney in his 

appeal of right. He raised the claim for the first time in his post-appellate motion for relief from 

judgment. Petitioner’s violation of Rule 6.508(D)(3) satisfies the first procedural-default factor. 

 The state trial court rejected Petitioner’s claim, in part, because Petitioner did not show 

“good cause” under Rule 6.508(D)(3)(a) or prejudice under Rule 6.508(D)(3)(b). This ruling 

constituted enforcement of Rule 6.508(D), and even though the trial court also addressed 

Petitioner’s claim on the merits, the alternative holding does not require this Court to disregard 

the state court’s procedural ruling. Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998). As explained 

in Harris v. Reed, 489 U.S. 255 (1989), 

a state court need not fear reaching the merits of a federal claim in an alternative

holding. By its very definition, the adequate and independent state ground 

doctrine requires the federal court to honor a state holding that is a sufficient basis 

for the state court’s judgment, even when the state court also relies on federal law. 

See Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S. Ct. 183, 184, 80 L. Ed. 

158 (1935). Thus, by applying this doctrine to habeas cases, [Wainwright v. 

Sykes, 433 U.S. 72 (1977)] curtails reconsideration of the federal issue on federal 

habeas as long as the state court explicitly invokes a state procedural bar rule as a 

separate basis for decision. In this way, a state court may reach a federal question 

without sacrificing its interests in finality, federalism, and comity. 

Id. at 264 n.10 (emphasis in original). Thus, the trial court’s ruling satisfies the second 

procedural-default factor. 

 The third procedural-default factor also is satisfied because Rule 6.508(D) is an adequate 

and independent ground on which states courts may rely to foreclose review of federal claims. 
28 

Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005). So, to prevail on his procedurally 

defaulted claim, Petitioner must show “cause” for his state procedural error and resulting 

prejudice. 

2. Cause and Prejudice; Miscarriage of Justice

 Petitioner alleges in his fifth claim that his appellate attorney was ineffective for failing to 

raise his fourth claim on direct appeal. Constitutionally ineffective assistance of counsel is cause 

for a procedural default. Carrier, 477 U.S. at 488. However, an appellate attorney is 

constitutionally ineffective only if (1) the attorney acted unreasonably in failing to discover and 

raise nonfrivolous issues on appeal and (2) there is a reasonable probability Petitioner would 

have prevailed on appeal if his attorney had raised the issue. Smith v. Robbins, 528 U.S. 259, 

285 (2000) (citing Strickland, 466 U.S. at 687-91, 694). 

 When assessing the prejudice prong of this test, the Court considers the strength of the 

claims that appellate counsel failed to raise. Carter v. Parris, 910 F.3d 835, 841 (6th Cir. 2018) 

(citing Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008)). “If there is no ‘reasonable 

probability that inclusion of the issue would have changed the result of the appeal,’ then habeas 

relief will not be granted.” Id. (quoting McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 

2004)), petition for cert filed (U.S. Apr. 23, 2019). 

 Petitioner averred in a sworn affidavit signed on April 20, 2015, that before his third 

interview with the police, he told Sergeant Guerro to take him to the county jail or to get a 

lawyer for him. Sergeant Guerro allegedly responded by telling Petitioner that a lawyer would 

not help him at that point and that he should talk with Sergeant Brown about going to jail. 
29 

Petitioner claims that he replied to Sergeant Guerro’s comment by asserting that he wanted a 

lawyer. Shortly afterward, the officers took him to see Sergeant Brown, and the third interview 

commenced. See Mot. to Reopen Habeas Proceedings, Ex. A, Affidavit of Gary Lee Robinson, 

p. 1, ECF No. 14, PageID. 2261. 

 Petitioner goes on to say in his affidavit that he told his pretrial attorney about his 

encounter with Sergeant Guerro, but his attorney did not encourage him to testify at the pretrial 

evidentiary hearing or advise him of his right to testify at the hearing. Instead, the attorney 

stated that the prosecution would not be calling Guerro as a witness because Guerro did not 

appear on the recording of the police interrogation of Petitioner. Id., pp. 1-2, PageID. 2261-62. 

 The first prong of the test for ineffective assistance of appellate counsel requires showing 

that counsel acted unreasonably in failing to discover and raise nonfrivolous issues on appeal. 

Sergeant Guerro did not interview Petitioner, and there is no mention of Guerro in the pretrial 

proceedings. Further, Petitioner does not allege that he informed his appellate attorney about 

Sergeant Guerro, and he did not sign his affidavit until more than a year and a half after his 

appeal of right concluded. For these reasons, appellate counsel did not act unreasonably in 

failing to discover and raise Petitioner’s fourth claim on direct appeal. 

 Petitioner also fails to satisfy the prejudice prong of the test for ineffective assistance of 

appellate counsel. Petitioner’s allegation that he requested an attorney when he spoke with 

Sergeant Guerro is not consistent with the rest of the state-court record. The transcript of 

Petitioner’s third interview and Sergeant Brown’s testimony at the evidentiary hearing and at 

trial indicate that Petitioner initiated the third interview with Brown and then voluntarily 

confessed to his involvement in the murder. This contradicts Petitioner’s averment in his 
30 

affidavit that, before his third interview with Sergeant Brown, he wanted to go to jail or have an 

attorney appointed. Thus, Petitioner’s claim that trial counsel should have called Guerro as a 

witness or advised Petitioner of his right to testify at the state evidentiary hearing lacks merit, 

and there is not a reasonable probability that Petitioner would have prevailed on appeal if 

appellate counsel had raised the issue of trial counsel’s alleged ineffectiveness. 

 Appellate counsel was not ineffective. Therefore, she was not “cause” for Petitioner’s 

procedural error of failing to raise his fourth claim on direct appeal. 

 The Court need not determine whether the alleged constitutional error prejudiced 

Petitioner, because he has failed to show cause for his failure to comply with state law. Smith, 

477 U.S. at 533; Simpson, 238 F.3d at 409. Additionally, a miscarriage of justice will not occur 

if the Court declines to adjudicate Petitioner’s claim on the merits, because Petitioner did not 

present the Court with any new and credible evidence of actual innocence. His fourth claim is 

procedurally defaulted. 

E. Appellate Counsel

 In his fifth and final claim, Petitioner raises his argument about appellate counsel as an 

independent claim. Petitioner asserts that his appellate attorney should have investigated or 

raised a claim about his pretrial attorney’s failure to advise Petitioner of the right to testify at the 

evidentiary hearing on his motion to suppress his statement to the police. 

 An indigent defendant has no constitutional right to compel appointed counsel to raise 

nonfrivolous claims on appeal, Jones v. Barnes, 463 U.S. 745, 751 (1983), and, as pointed out 

above, Petitioner’s underlying claim about his pretrial attorney lacks merit. “[B]y definition, 
31 

appellate counsel cannot be ineffective for a failure to raise an issue that lacks merit.” Greer v. 

Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). Petitioner, therefore, has no right to relief on his 

independent claim about appellate counsel. 

IV. Conclusion

 Petitioner’s claims either lack merit or are procedurally defaulted. Furthermore, the state 

courts’ rejection of the claims was not objectively unreasonable or so lacking in justification that 

there was an error beyond any possibility for fairminded disagreement. The Court, therefore, 

denies the application for a writ of habeas corpus. 

V. Certificate of Appealability; In Forma Pauperis Status on Appeal

 “[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no automatic 

right to appeal a district court’s denial or dismissal of the petition. Instead, [the] petitioner must 

first seek and obtain a [certificate of appealability.]” Miller-El v. Cockrell, 537 U.S. 322, 327 

(2003). A certificate of appealability may issue “only if the applicant has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies 

this standard by demonstrating that jurists of reason could disagree with the district court’s 

resolution of his constitutional claims or that jurists could conclude the issues presented are 

adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327. The 

Supreme Court explained in Slack v. McDaniel, 529 U.S. 473 (2000), that when 

a district court has rejected the constitutional claims on the merits, the showing 

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate 

that reasonable jurists would find the district court’s assessment of the 

constitutional claims debatable or wrong . . . . When the district court denies a 

habeas petition on procedural grounds without reaching the prisoner’s underlying 

constitutional claim, a [certificate of appealability] should issue when the prisoner 
32 

shows, at least, that jurists of reason would find it debatable whether the petition 

states a valid claim of the denial of a constitutional right and that jurists of reason 

would find it debatable whether the district court was correct in its procedural 

ruling. 

Id. at 484 (2000). 

 Reasonable jurists could debate the Court’s assessment of Petitioner’s first claim 

regarding the voluntariness of his statement to the police. Accordingly, the Court grants a 

certificate of appealability on that claim. The Court also grants permission to proceed in forma 

pauperis on appeal, because an appeal from the Court’s decision could be taken in good faith. 

28 U.S.C. § 1915(a)(3). 

 Petitioner’s second and fourth claims are procedurally defaulted, and reasonable jurists 

would not find it debatable whether the Court’s procedural ruling is correct or whether Petitioner 

stated a valid claim of the denial of a constitutional right. Further, reasonable jurists would not 

find the Court’s assessment of Petitioner’s third and fifth claims debatable or wrong. 

Accordingly, the Court declines to issue a certificate of appealability on claims two through five. 

 s/ Victoria A. Roberts 

 VICTORIA A. ROBERTS 

 UNITED STATES DISTRICT JUDGE 

Date: 7/30/19