UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

This is a pro se habeas case under 28 U.S.C. § 2254. After the shooting death of his 

girlfriend Lauri Pilot, at their home in Henderson, Michigan on December 15, 2010, a 

Shiawassee County jury convicted Donald Porter of first-degree murder in violation of Michigan 

Compiled Laws § 750.316(1)(a) and possession of a firearm during the commission of a felony 

in violation of § 750.227b. Porter was sentenced to life in prison without parole for the murder 

conviction and a consecutive two-year term of imprisonment for the firearm conviction. His 

habeas claims lack merit, so the Court will deny his petition. 

I.

 By way of background, the Michigan Court of Appeals described some of the relevant 

facts as follows: 

Defendant’s convictions arise from the December 15, 2010 shooting death of his 

live-in girlfriend, Lauri Pilot, in their house in Henderson, Michigan. Evidence 

indicated that defendant and Pilot had a tumultuous relationship. The 

prosecution’s theory was that, on the night of Pilot’s death, defendant and Pilot 

argued before defendant placed a 20–gauge shotgun directly on Pilot’s chest and 

pulled the trigger. Pilot died instantly. When the police arrived, Pilot was lying on 

DONALD PORTER, 

 Petitioner, 

 

v. 

SHANE JACKSON, 

 Respondent. 

Case No. 14-12998 

Honorable Laurie J. Michelson 

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS 

CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, DENYING LEAVE 

TO PROCEED IN FORMA PAUPERIS ON APPEAL, 

AND AMENDING CASE CAPTION 

Case 2:14-cv-12998-LJM-PJK ECF No. 14, PageID.3177 Filed 07/25/17 Page 1 of 25
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her bed with a shotgun parallel to her body. Defendant initially told the police that 

Pilot committed suicide, but later stated that the shotgun accidentally discharged 

during a mutual struggle over the gun. At trial, the prosecution presented evidence 

through expert witnesses and law enforcement personnel that Pilot’s death was a 

homicide, that she suffered a tight contact wound, that the scene was altered, and 

that it was unlikely that Pilot died from a self-inflicted wound or an accidental 

shooting. The defense maintained that defendant did not shoot Pilot, and 

defendant testified that Pilot committed suicide. 

The prosecution presented the testimony of a jailhouse informant, Richard Turner, 

who testified that defendant made several comments about his case, including that 

he had been fighting with Pilot over a “legal issue” concerning the title to the 

house, and that defendant had another girlfriend who came to visit him in jail. 

Turner was cross-examined regarding his pending charge of manufacturing more 

than 200 marijuana plants, and denied being promised anything in return for his 

testimony. 

People v. Porter, No. 308094, 2014 WL 575760, *1–2 (Mich. Ct. App. Feb. 11, 2014) (per 

curiam) (footnoted citation omitted). The Court will discuss other relevant facts throughout its 

analysis.

Following his convictions and sentencing, Porter filed an appeal of right with the 

Michigan Court of Appeals, raising six claims: (1) the evidence was insufficient to sustain the 

first-degree murder conviction; (2) the trial court erred by allowing witness testimony about 

statements the victim had made before her death about Porter’s threat to kill her; (3) the trial 

court erroneously refused to suppress Porter’s inconsistent statements to the police; (4) the trial 

court erred in refusing to give a jury instruction on involuntary manslaughter; (5) the trial court 

improperly restricted Porter’s cross-examination of a jailhouse informant; and (6) the trial court 

erred in allowing the late endorsement of the jailhouse informant as a witness. In an explained 

decision, the appellate court denied relief on those claims and affirmed Porter’s convictions. Id.

at *2–10. Porter then filed an application for leave to appeal with the Michigan Supreme Court 

raising the same claims. The court denied leave to appeal because it was “not persuaded that the 

questions presented should be reviewed.” People v. Porter, 847 N.W.2d 506 (Mich. Jun. 24, 

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2014). Porter’s habeas petition raises the same six claims as his direct appeal. (R. 1.) He has not 

petitioned the United States Supreme Court for certiorari nor sought post-conviction relief in 

state court. 

II.

The standard of review this Court applies to each of Porter’s claims depends on whether 

the claim was “adjudicated on the merits in State court[.]” 28 U.S.C. § 2254(d); see also Johnson 

v. Williams, 568 U.S. 289 (2013). If the Michigan Court of Appeals decided a claim “on the 

merits,” the Antiterrorism and Effective Death Penalty Act of 1996 prohibits this Court from 

granting habeas corpus relief unless the adjudication “(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.” See 28 U.S.C. § 2254(d). But “[w]hen a state court does not address a claim on the 

merits, . . . ‘AEDPA deference’ does not apply and [this Court] will review the claim de novo.”

Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014). 

III. 

A.

Porter first asserts that he is entitled to habeas relief because the prosecution failed to 

present sufficient evidence to support his first-degree murder conviction, particularly on whether 

he acted with premeditation and deliberation. 

To assess a sufficiency of evidence claim, “the relevant question is whether, 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.” Davis v. 

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Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 

319 (1979)). “The Jackson v. Virginia standard ‘gives full play to the responsibility of the trier of 

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts.’” Id. (quoting Jackson, 443 U.S. at 319). The

standard “is so demanding that ‘[a] defendant who challenges the sufficiency of the evidence to 

sustain his conviction faces a nearly insurmountable hurdle.’” Id. at 534 (quoting United States v. 

Oros, 578 F.3d 703, 710 (7th Cir. 2009)). “Adding to this extremely high bar are the stringent 

and limiting standards of AEDPA,” which allows a federal habeas court to disrupt “a state 

court’s decision that correctly identified and applied the controlling Supreme Court precedent 

only if the application of that precedent was objectively unreasonable, meaning more than 

incorrect or erroneous.” Id. (internal quotation marks and citations omitted). The Jackson 

standard “is applied ‘with explicit reference to the substantive elements of the criminal offense as 

defined by state law,’” so the Court will look to Michigan law. Id. at 531 (quoting Jackson, 443 

U.S. at 324 n.16). 

Under Michigan law, first-degree murder includes “[m]urder perpetrated by means of . . . 

any . . . willful, deliberate, and premeditated killing.” Mich. Comp. Laws § 750.316(1)(a). 

Relevant factors for establishing premeditation and deliberation include “(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.” See, e.g., People v. 

Schollaert, 486 N.W.2d 312, 318 (Mich. Ct. App. 1992) (citations omitted). In other words, 

“[t]he elements of premeditation and deliberation may be inferred from the circumstances 

surrounding the killing.” Id. (citation omitted). 

The Michigan Court of Appeals rejected Porter’s claim “on the merits” as follows: 

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[T]he prosecution presented evidence that defendant and Pilot had a tumultuous 

relationship, fueled by heavy alcohol consumption. Defendant’s nephew and 

brother observed Pilot slap defendant on occasion. Pilot’s father observed Pilot 

with black eyes a few times. Pilot’s father also received several calls from Pilot 

over the course of the parties’ relationship because she and defendant were 

arguing. After one such call, Pilot’s father went to the house, calmed down 

defendant and Pilot, and, on noticing a shotgun in the garage, took it home out of 

concern. He returned the gun about a month before Pilot’s death. Two days before 

her death, Pilot told a coworker that defendant had threatened to kill her. On the 

day of Pilot’s death, as defendant acknowledged, defendant and Pilot were 

involved in an argument, which led to Pilot throwing a plate of food at defendant 

and going into the bedroom. Subsequently, Pilot was found dead on her bed with 

the shotgun aligned next to her body.

Medical evidence indicated that the 20–gauge shotgun was placed “right up 

against” the center of Pilot’s chest when the trigger was pulled, leaving a 

“relatively large wound.” Afterward, the spent shell casing was manually ejected 

from the chamber of the shotgun; it was not an automatic weapon that would eject 

the shell as part of the firing process. Defendant’s DNA was found on the trigger 

of the shotgun. Expert medical testimony indicated that because of the explosive 

and extensive injuries from the “tight contact gunshot,” Pilot immediately 

collapsed and died; therefore, it was extremely improbable that she could have 

ejected the shell after firing, supporting the inference that someone else ejected it. 

Defendant and Pilot were the only two people in the house. A jury could 

reasonable infer from this evidence that defendant placed the 20–gauge shotgun 

directly on Pilot’s chest, pulled the trigger, ejected the spent shell casing, and 

placed the gun next to her body. 

Further, the evidence showed that defendant did not use the working cellular 

telephone in the house to call 911, but instead went to his nephew’s residence and 

announced that Pilot had committed suicide. The officers who arrived at the 

scene, many with several years of experience in investigating suicide deaths 

involving a long gun, immediately observed that the scene was inconsistent with a 

suicide and appeared to have been altered. Both a medical expert and a firearms 

expert also agreed that the scene had been altered and there was a “cover-up.” 

Testimony from both the responding paramedic and a law enforcement officer 

also indicated that Pilot had not died as recently as defendant reported. From this 

testimony, a jury could reasonably infer that after shooting Pilot at close range 

with a 20–gauge shotgun, defendant took the time to adjust the scene to stage a 

suicide before reporting her death. In addition, defendant gave the police three 

different versions of what occurred, first stating that Pilot shot herself, and 

ultimately stating that the gun accidentally discharged as he and Pilot struggled 

over it. But there was no sign of a struggle around the body or in the bedroom. At 

trial, defendant reverted to the assertion that Pilot committed suicide. 

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The reasonable inferences arising from this evidence, considered together, were 

sufficient to support a finding of premeditation and deliberation for first-degree 

murder beyond a reasonable doubt. Although defendant argues that different 

inferences should be drawn from the evidence, those challenges are related to the 

weight of the evidence rather than its sufficiency. . . . The same challenges 

asserted on appeal were presented to the jury during trial. This Court will not 

interfere with the jury’s role of determining issues of weight and credibility. . . . 

Rather, this Court must draw all reasonable inferences and make credibility 

choices in support of the jury’s verdict, and that deferential standard of review “is 

the same whether the evidence is direct or circumstantial.” . . . Viewed in a light 

most favorable to the prosecution, the evidence was sufficient to sustain 

defendant’s conviction of first-degree premeditated murder. 

Porter, 2014 WL 575760 at *2-3 (internal citations omitted). 

There is nothing unreasonable about this decision and it is fully supported by the record. 

For one, Porter and Pilot had a tumultuous relationship. (See, e.g., 8-16, PID 1170.) At 

times, their often alcohol-fueled disagreements became physical. (See, e.g., 8-16, PID 1190, 

1208.) And according to Pilot’s co-worker, Ashley Rolfe, Pilot said days before the shooting that 

Porter had even threatened to kill her. (R. 8-6, PID 1304.) (As the Court will discuss later, it was 

not unreasonable for the Michigan Court of Appeals to conclude that this testimony was 

admissible.) They argued again on the day of the shooting.

A reasonable jury could have inferred that the ensuing shotgun wound to Pilot’s chest 

was inconsistent with suicide, for several reasons. The gun was found in an unnatural position 

next to her body. (R. 8-18, PID 1893.) The wound was consistent with Pilot laying still at the 

time of the shooting, meaning Porter would have had time to contemplate his actions while 

approaching her with the gun. (See R. 8-18, PID 1843.) Absent was the type of blood splatter 

expected from a self-inflicted wound. (R. 8-17, PID 1356, 1530.) Moreover, a spent shell casing 

was found on the floor, one that in all likelihood had to have been manually removed from the 

weapon by someone other than the victim. (R. 8-17, PID 1564, 1571.) And Porter’s own DNA 

matched a sample taken from the trigger. (R. 8-19, PID 2182–83.) 

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After the shooting, instead of calling 911, Porter left the scene and told family members 

that Pilot had committed suicide. (R. 8-16, PID 1282.) But he left only after apparently altering 

the crime scene, leaving the gun placed “neatly” next to her. (R. 8-17, PID 1530.) He 

subsequently gave inconsistent accounts to the police, one including a claim the gun went off 

during a struggle between the two of them. (R. 8-19, PID 2024.) The Court of Appeals 

reasonably found that this overwhelming evidence was sufficient to sustain the jury’s first degree 

murder conviction.

Porter’s arguments to the contrary are meritless. First, he attacks the credibility of Dr. 

Brian Hunter, a forensic pathologist who opined that Pilot’s death was not a suicide, in part 

because another forensic pathologist, Dr. Joyce DeJong (the medical examiner in the case), 

classified the cause of death as “indeterminate.” (R. 11, PID 3135; R. 8-18, PID 1895; R. 8-18, 

PID 1857.) But “attacks on witness credibility are simply challenges to the quality of the 

government’s evidence and not to the sufficiency of the evidence.” Martin v. Mitchell, 280 F.3d 

594, 618 (6th Cir. 2002). Second, Porter criticizes the Michigan Court of Appeals for failing to 

emphasize that he was drunk at the time of his questioning by police. (R. 11, PID 3136.) But that 

too has little relevance to the sufficiency of the evidence, and even he acknowledges that 

intoxication is no defense to a crime under Michigan Compiled Laws § 768.37(1). (R. 11, PID 

3138.)

Thus, habeas relief is not warranted for Porter’s first claim. 

B.

Porter’s next claim for habeas relief is that the trial court erred in admitting certain 

testimony from Ashley Rolfe, Pilot’s co-worker at a bar at the time of the homicide. (R. 8-16, 

PID 1298.) According to Rolfe, Pilot summoned her to pick her up at her house just days before 

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the homicide, and when Pilot got in the car, she said, “I had to get the hell out of here, he 

threatened to kill [me].” (R. 8-16, PID 1304.) 

In his direct appeal, Porter argued that trial court erred by admitting this testimony under 

Michigan Rule of Evidence 804(b)(7), Michigan’s “catch all” exception to the hearsay rule when 

the declarant is unavailable. (R. 1, PID 34.) The Michigan Court of Appeals rejected the claim as 

follows: 

We agree with the trial court that Pilot’s statement to Rolfe had sufficient 

guarantees of trustworthiness to be admissible at trial. The record establishes that 

Pilot’s statement was made spontaneously. Pilot called the bar where she worked 

part time to ask Dick Dedic, her boss, if he could pick her up and bring her to the 

bar; she was not scheduled to work. Rolfe, a bartender and server, was told to 

make the five-minute drive to pick up Pilot. As soon as Rolfe pulled in the 

driveway of Pilot’s residence, Pilot entered the vehicle and, without any 

prompting, immediately stated, “I had to get the hell out of there. He threatened to 

kill me.” Rolfe did not ask Pilot any questions before Pilot made this statement 

and there is no indication that the statement was made in response to anything 

Rolfe said, or under any circumstances of undue influence. Although there was 

some indication that Pilot had been drinking, Rolfe and Dedic both testified that 

Pilot was not intoxicated. Pilot appeared visibly upset and concerned. She did not 

seem normal. Pilot made the statement to Rolfe even though Rolfe and Pilot were 

not friends “of any kind.” It was unusual for Pilot to share something of this 

nature with Rolfe, and Rolfe was not a person in whom Pilot would normally 

confide. These facts support the admissibility of Pilot’s statement. After Pilot’s 

unprompted statement, Rolfe asked, “What?” and, instead of providing any other 

statements that altered her prior statement, Pilot simply repeated her prior 

statement that “he threatened to kill me.” Thus, Pilot’s statements were consistent. 

Further, there was no indication that Pilot or Rolfe had any bias or motive to 

fabricate, or that Pilot had anything to gain by falsely making this statement to 

Rolfe, thereby enhancing the statement’s reliability and trustworthiness. 

Considering the totality of the circumstances, the trial court did not err in finding 

that the statement had sufficient indicia of reliability. 

We also agree with the trial court that the statement was evidence of a material 

fact because it was probative of defendant’s premeditation, inasmuch as it showed 

that defendant had threatened to kill Pilot within 48 hours of her death. “A 

material fact is ‘[a] fact that is significant or essential to the issue or matter at 

hand.’” . . . As the court observed, the statement was particularly relevant to 

defendant’s intent, given his defense that Pilot’s death was the result of a selfinflicted wound or the accidental discharge of the shotgun. The statement was 

also more probative of defendant’s intent than any other evidence that the 

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prosecution could procure through reasonable efforts. This requirement 

“essentially creates a ‘best evidence’ requirement.” . . . The prosecution advised 

the court that no other evidence of this fact was available, and we discern no 

indication from the record that there was any other evidence to show that 

defendant had contemplated to kill Pilot within close proximity to the time of her 

death. Therefore, admission of the statement “serves the interest of justice.” . . . 

Finally, there is no dispute that defendant had sufficient notice of the prosecutor’s 

intent to offer Pilot’s statement. Consequently, the trial court’s decision to allow 

the evidence under MRE 804(b)(7) did not fall outside the range of reasonable 

and principled outcomes. 

Porter, 2014 WL 575760 at *3–5. (internal citations omitted). 

As an initial matter, to the extent that Porter asks this Court to grant relief on the grounds 

that the state courts erred in their application of Michigan Rule of Evidence 804(b)(7) that is not 

a valid ground for federal habeas relief. A federal habeas corpus court “cannot grant the writ 

based on [its] disagreement with state-court determinations on state-law questions.” Wynne v. 

Renico, 606 F.3d 867, 871 (6th Cir. 2010) (internal quotation marks and citations omitted). 

But a federal habeas court can grant relief if “the state-court determination is so fundamentally 

unfair that it deprives a defendant of [the] due process” guaranteed by the Due Process Clause. 

Id. In his direct appeal brief, Porter urged in passing that Due Process under the Fourteenth 

Amendment “prevent[s] fundamental unfairness in the use of evidence,” but he offered no legal 

analysis on the supposed constitutional dimensions of his claim. (R. 1, PID 34.) So it comes as 

no surprise that the Michigan Court of Appeals did not expressly address the Due Process 

implications of Rolfe’s testimony. But it is unlikely the Michigan Court of Appeals would have 

agreed with the trial court that Pilot’s out-of-court statements were sufficiently trustworthy had 

the court thought admission of the statements fundamentally deprived Porter of a fair trial. So 

this Court will presume that Rolfe’s Due Process claim was decided “on the merits” and thus 

apply AEDPA deference. See Johnson v. Williams, 568 U.S. 289, 301 (2013) (“When a state 

court rejects a federal claim without expressly addressing that claim, a federal habeas court must 

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presume that the federal claim was adjudicated on the merits—but that presumption can in some 

limited circumstances be rebutted.”). 

The Michigan Court of Appeals reasonably concluded that Pilot’s out-of-court statement 

to Rolfe had sufficient guarantees of trustworthiness: Pilot requested a ride to work at a time she 

was not scheduled to be at work, she spontaneously made the statement to a co-worker, the two 

were not particularly close, neither had a motive to lie, and Pilot was not intoxicated when she 

made the statement. Porter’s threat to kill Pilot just two days before she was shot was also highly 

relevant to show his intent and premeditation, undermining his inconsistent claims that the 

shotgun either discharged accidentally during a struggle or that Pilot committed suicide. Porter 

points to no clearly established law suggesting that Rolfe’s testimony deprived him of a fair trial. 

Instead, in his reply brief, Porter points to Crawford v. Washington, 541 U.S. 36 (2004), 

and urges that Rolfe’s testimony was a “cheap shot” at violating his rights under the 

Confrontation Clause. (R. 11, PID 3140.) But Porter never exhausted a Confrontation Clause 

claim. He did not raise it on direct appeal in his claim addressing Rolfe’s testimony. And while 

he did so in his application for leave to appeal to the Michigan Supreme Court (see R. 1, PID 

51), “the submission of new claims to a state’s highest court on discretionary review does not 

constitute fair presentation of the claims to the state courts,” a requirement for exhaustion, 

Skinner v. McLemore, 425 F. App’x 491, 494 (6th Cir. 2011) (citing Castille v. Peoples, 489 

U.S. 346, 349 (1989)). Still, in some circumstances, a habeas court can deny the writ [petition?] 

for an unexhausted claim. See 28 U.S.C. § 2254(b)(2); see also Hickey v. Hoffner, No. 16-1186, 

2017 WL 2829523, at *4 (6th Cir. June 30, 2017) (construing § 2254(b)(2) to authorize district 

courts to reject only “plainly meritless” unexhausted claims). Here, to the extent Porter is 

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attempting to raise a Confrontation Clause claim for the first time, this unexhausted claim is 

plainly meritless. 

As the Supreme Court held in Crawford, the Confrontation Clause bars the “admission of 

testimonial statements of a witness who did not appear at trial unless he was unavailable to 

testify, and the defendant had had a prior opportunity for cross-examination.” Id. at 53–54. 

Testimonial statements include “ex parte in-court testimony or its functional equivalent—that is, 

material such as affidavits, custodial examinations, prior testimony that the defendant was unable 

to cross-examine, or similar pretrial statements that declarants would reasonably expect to be 

used prosecutorially, . . . extrajudicial statements contained in formalized testimonial materials, 

such as affidavits, depositions, prior testimony, or confessions, . . . statements that were made 

under circumstances which would lead an objective witness reasonably to believe that the 

statement would be available for use at a later trial, [and] . . . [s]tatements taken by police 

officers in the course of interrogations.” Id. at 51–52. Petitioner has cited no authority holding 

that an unsolicited statement made to an acquaintance in an attempt to escape potential violence 

constitutes a “testimonial” statement. See, e.g., Ohio v. Clark, 135 S. Ct. 2173, 2182, 192 L. Ed. 

2d 306 (2015) (“Statements made to someone who is not principally charged with uncovering 

and prosecuting criminal behavior are significantly less likely to be testimonial than statements 

given to law enforcement officers.”); cf. Davis v. Washington, 547 U.S. 813, 822 (2006) (holding 

even that statements “made in the course of police interrogation” are non-testimonial when the 

“circumstances objectively indicat[e] that the primary purpose of the interrogation is to enable 

police assistance to meet an ongoing emergency”).

Accordingly, habeas relief is not warranted for Porter’s second claim, whether his theory 

is a hearsay violation, a Due Process violation, or a Confrontation Clause violation.

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C.

Porter next asserts that he is entitled to habeas relief because the trial court erred by 

denying his motion to suppress certain inculpatory statements he made to the police before he 

was Mirandized.

At a pretrial suppression hearing, Shiawassee County Detective Sergeant Scott Shenk 

testified that during questioning at the sheriff’s department on the morning following Pilot’s 

death, Porter offered multiple conflicting accounts. (R. 8-8, PID 462, 504, 506.) The trial court 

suppressed part of Porter’s statements, finding that at a certain point the interview shifted into a 

custodial interrogation. (R. 8-8, PID 546.) 

But that decision still allowed some of Porter’s statements in at trial. There, Detective 

Shenk testified that he questioned Porter from 5:15 a.m. until 7:23 a.m. (R. 8-21, PID 2343.) 

Shenk said that Porter first maintained that when he found that Pilot had shot herself, he gave her 

a hug, moved the gun slightly and then put it back where it was. (R. 8-21, PID 2351.) In that 

version, Porter claimed he did not hear a gunshot. (Id.) Next, Porter offered that if he had shot 

Pilot, he must have blacked out. (R. 8-21, PID 2352.) Then Porter offered a third version: that he 

remembered that he had shot and killed her. (R. 8-21, PID 2353.) But then he said that he had 

seen her with the gun up against her chest, and when he reached for it, either he or she pulled the 

trigger, but he did not know who. (R. 8-21, PID 2355.) 

In his direct appeal, Porter argued that his statements arose from a custodial interrogation 

because he had been properly Mirandized. The Michigan Court of Appeals rejected that claim on 

the merits as follows: 

At an evidentiary hearing, defendant did not testify, but the court heard testimony 

from the interviewing detective. According to the detective, after defendant’s 

house was designated a crime scene, defendant was placed in a patrol car in the 

driveway of the residence to stay warm. Although the rear doors had no handles, 

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defendant could exit the car because a deputy was always in the car. In fact, 

defendant left the car to urinate on occasion. For the most part, defendant slept 

while in the rear of the patrol car. Ultimately, the interviewing detective opened 

the car door, told defendant that he was not under arrest, and asked defendant if 

he would voluntarily accompany him to the sheriff’s department to give a 

statement. The detective advised defendant that he wanted to talk to him about 

what he and Pilot had done that day. Defendant did not have a working vehicle 

that he could drive to the sheriff’s department, so he rode with the detective. The 

detective’s car was a “regular automobile,” not a patrol car, so it had operable 

backdoor handles and was not equipped with a cage or other restrictive 

equipment. In addition to verbally being told that he was not under arrest, 

defendant was not restrained in any manner at the scene or during the ride. Upon 

arrival at the department, defendant accepted the offer of a cup of coffee and 

asked for a cigarette. Defendant was provided with two cigarettes, shown where 

he could smoke outside, and told to knock on the door when he wanted to come 

back inside. The outside area was not fenced in, and defendant could have simply 

walked away. Although defendant notes that his home was several miles away, as 

the trial court noted, defendant could have walked to the payphone at the gas 

station across the street if he wanted to call someone for a ride. The interviewing 

detective also testified that defendant “absolutely” would have been driven back 

home if he had asked. The interview lasted approximately two hours. During that 

period, however, defendant took at least five breaks, from five to 15 minutes each, 

where he freely went outside and smoked one or two cigarettes. Defendant was 

never handcuffed or restrained in any way during the interview.

Considering the totality of the objective circumstances in this case, the trial court 

did not err in concluding that defendant was not “in custody” such that Miranda

warnings would have been required. Defendant’s argument is based primarily on 

his trial testimony that he did not subjectively feel free to leave. However, the 

pertinent inquiry is objective, not subjective. . . . Moreover, as the trial court 

noted, during defendant’s recorded custodial statement, which was not admitted at 

trial, defendant acknowledged that he was free to leave before being given his 

Miranda rights. Consequently, because defendant was not in custody prior to that 

time, Miranda warnings were not necessary, and the trial court did not err by 

partially denying his motion to suppress his statements. 

Porter, 2014 WL 575760 at *5–6 (internal citation omitted). 

This decision was not contrary to nor an unreasonable application of clearly established 

federal law. In Miranda v. Arizona, 384 U.S. 436, 458, 532 (1966), the Supreme Court held that 

certain pre-interrogation warnings are required during “custodial interrogations” because of the 

“compulsion inherent in custodial surroundings.” The Supreme Court defined “custodial 

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interrogation” as “questioning initiated by law enforcement officers after a person has been taken 

into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 444. 

Subsequently, “the Supreme Court framed the proper inquiry as involving two essential 

questions: ‘[F]irst, what were the circumstances surrounding the interrogation; and second, given 

those circumstances, would a reasonable person have felt he or she was not at liberty to terminate 

the interrogation and leave.’” Coomer v. Yukins, 533 F.3d 477, 485 (6th Cir. 2008) (quoting 

Thompson v Keohane, 516 U.S. 99, 112 (1995)). “The Court directed that ‘[o]nce the scene is set 

and the players’ lines and actions are reconstructed, the court must apply an objective test to 

resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the 

degree associated with a formal arrest.’” Id. at 485–86 (quoting Keohane, 516 U.S. at 112).

The record supports the Michigan Court of Appeals’ determination that Porter was not in 

custody when he spoke with detectives at the sheriff’s department before being arrested. First, 

Porter voluntarily agreed to accompany the detective to the sheriff’s department, was advised 

that he was not under arrest, and was driven to the sheriff’s department in a regular car without 

being handcuffed or otherwise restrained. Second, while the interview was conducted at the 

sheriff’s department, Porter was not restrained and was able to go outside alone in an unfenced 

area for several smoking breaks. Third, the interview, including the breaks, lasted only a little 

over two hours, and nothing suggests that the questioning was hostile or coercive. Fourth, Porter 

was free to leave at any time before he was arrested. Given such circumstances, it was not 

unreasonable for the state court to conclude that Porter failed to establish a violation of his 

Miranda rights.

It is true, as Porter points out in his reply brief, that the Michigan Court of Appeals did 

not expressly consider his intoxication. (See R. 11, PID 6.) But Porter’s own description of the 

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facts in his direct appeal regarding his level of intoxication further support that the interview did 

not to amount to a custodial interrogation. Before the interview, he told police he had three to 

four beers, his last at 9:30 p.m. (R. 1, PID 23.) While he submitted to a preliminary breath test at 

1:00 a.m. (his blood alcohol content was .20, according to testimony at the suppression hearing), 

the interview did not start until after 5:00 a.m., at which point he “no longer appeared to be 

intoxicated and did not slur his speech.” (R. 1, PID 18, 23.)

Accordingly, habeas relief is unwarranted for Porter’s third claim. 

D.

Porter next asserts that he is entitled to habeas relief because the trial court denied his 

request for a jury instruction on involuntary manslaughter. 

Under Michigan law, involuntary manslaughter is a lesser included offense of first-degree 

murder. People v. Mendoza, 664 N.W.2d 685, 693 (Mich. 2003). When a defendant is charged 

with murder, an instruction on involuntary manslaughter “is appropriate only when a rational 

view of the evidence supports a conviction for the lesser offense.” Id. at 694.

The Michigan Court of Appeals rejected Porter’s claim (on the merits) as follows: 

As it relates to this case, involuntary manslaughter is “the unintentional killing of 

another, without malice, during the commission of an unlawful act not amounting 

to a felony and not naturally tending to cause great bodily harm; or during the 

commission of some lawful act, negligently performed[.]” . . . “The kind of 

negligence required for manslaughter is something more than ordinary or simple 

negligence, however, and is often described as ‘criminal negligence’ or ‘gross 

negligence’[.]” . . . 

Although defendant testified at trial that Pilot’s gunshot wound was self-inflicted, 

he argues that he was entitled to a jury instruction on involuntary manslaughter 

because of the evidence of his statements to the police during an interview. In one 

of his statements, defendant related that upon observing Pilot with a shotgun 

pressed against her chest, he reached for it and their mutual struggle over the gun 

caused it to accidentally discharge, killing Pilot. Even considering this version of 

events, a rational view of the evidence does not support an involuntary 

manslaughter instruction. Although this version would be evidence that the killing 

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was unintentional, defendant’s act of attempting to disarm his girlfriend in an 

effort to stop her from committing suicide would not have been an unlawful act, 

and there was no evidence that the act would have been negligent. To the 

contrary, under those facts, defendant would not have been responsible at all for 

Pilot’s death. Consequently, no rational view of the evidence would have 

supported an involuntary manslaughter instruction, and the trial court did not 

abuse its discretion by failing to give an inapplicable charge to the jury. 

Porter, 2014 WL 575760 at *7 (footnote omitted). 

“[T]he fact that [an] instruction was allegedly incorrect under state law is not a basis for 

habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71–72 (1991) (citation omitted). The “only 

question” is “whether the ailing instruction by itself so infected the entire trial that the resulting 

conviction violates due process.” Id. at 72 (citations omitted). “[A]n omission, or an incomplete 

instruction, is less likely to be prejudicial than a misstatement of the law.” Wade v. TimmermanCooper, 785 F.3d 1059, 1079 (6th Cir. 2015) (quoting Henderson v. Kibbe, 431 U.S. 145, 155 

(1977)).

The Michigan Court of Appeals’ decision was not contrary to, or an unreasonable 

application of, clearly established Supreme Court precedent. “Simply put, the Constitution does 

not require a lesser-included offense instruction in non-capital cases. . . . [T]he Supreme Court 

has never so held.” McMullan v. Booker, 761 F.3d 662, 667 (6th Cir. 2014); see also Scott v. Elo,

302 F.3d 598, 606 (6th Cir. 2002) (holding that involuntary manslaughter instruction was not 

required under Due Process where petitioner was charged with first-degree murder under 

Michigan law). 

Nor was the state court’s decision otherwise unreasonable. Porter’s defense at trial was 

that Pilot killed herself while he was in another room. To the extent the evidence supported the 

theory that she killed herself, that would not also rationally support the theory of involuntary 

manslaughter. And as the Michigan Court of Appeals reasonably concluded, Porter’s conflicting 

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statement to police that he was struggling with Porter and trying to prevent her from committing 

suicide when the gun accidentally discharged also did not support an involuntary manslaughter 

instruction. Porter contends that the instruction was warranted because his intoxication “removes 

the intentional conduct of any crime.” (R. 1, PID 8.) But as noted earlier, under Michigan law, it 

does not. See Mich. Compl. Laws § 768.37(1). As a final point, the trial court properly 

instructed the jury on the elements of first-degree premeditated murder, and the evidence 

presented at trial was sufficient to support Porter’s conviction on that charge.

In short, Porter has failed to establish that the jury instructions, taken as a whole, 

rendered his trial fundamentally unfair. Estelle, 502 U.S. at 72 (“It is well established that the 

instruction may not be judged in artificial isolation, but must be considered in the context of the 

instructions as a whole and the trial record.” (internal quotation marks and citation omitted). So 

habeas relief is not warranted on this claim. 

E.

Porter next asserts that he is entitled to habeas relief because the late endorsement of 

jailhouse informant Richard Turner as a witness for the prosecution was improper. 

The Michigan Court of Appeals rejected the claim on the merits as follows: 

Not less than 30 days before the trial, the prosecutor shall provide a list of all 

witnesses he or she intends to produce at trial, but may add or delete witnesses 

upon leave of the court and for good cause shown or by stipulation of the parties. 

MCL 767.40a(3) and (4). The purpose of MCL 767.40a is to provide notice to the 

accused of potential witnesses. People v. Callon, 256 Mich App 312, 327; 662 

NW2d 501 (2003). The Legislature did not intend for MCL 767.40a to act as a bar 

to relevant evidence. Id. at 327. 

The record discloses that the prosecutor first learned of Turner’s identity as a 

potential witness shortly before trial and quickly advised the defense. Turner 

confirmed that he did not come forward until 10 days before trial began. As our 

Supreme Court has explained, MCL 767.40a “contemplates notice at the time of 

filing the information of known witnesses who might be called and all other 

known res gestae witnesses” and “imposes on the prosecution a continuing duty to 

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advise the defense of all res gestae witnesses as they become known.” People v. 

Burwick, 450 Mich 281, 288–289; 537 NW2d 813 (1995). Thus, late discovery or 

identification of a witness may be sufficient to establish good cause. See id. at 

284–285, and People v. Canter, 197 Mich App 550, 563; 496 NW2d 336 (1992). 

On appeal, defendant does not argue otherwise, but instead asserts that Turner’s 

late endorsement unfairly prejudiced his defense.

Regardless of whether the prosecution established good cause, a defendant must 

show that he was unfairly prejudiced to be entitled to any relief. Callon, 256 Mich 

App at 328. Typically, unfair prejudice results when defense counsel is unable to 

adequately prepare for the witness’s cross-examination. Burwick, 450 Mich at 

296. Here, the record discloses that the defense had more than a week to prepare 

to cross-examine Turner and had the use of a private investigator authorized by 

the trial court. In fact, the defense attorneys and the investigator interviewed 

Turner before his testimony. According to Turner, the interview lasted 

approximately 1–1/2 hours. The trial court required the prosecution to make a 

third cellmate available, whom the defense also had the opportunity to interview 

and ultimately called as a defense witness at trial. The third cellmate contradicted 

Turner’s claims of his conversations with defendant. Defendant asserts that he 

was not able to adequately prepare for Turner’s testimony because he had 

insufficient time to review several hours of recorded conversations between 

Turner and his girlfriend to hear what Turner might have discussed with his 

girlfriend about defendant’s statements and Turner’s decision to come forward. 

However, the value of the jail recordings is speculative, at best. Moreover, the 

prosecution determined the identity of Turner’s girlfriend and provided her name 

and address to the defense. The girlfriend refused to speak with anyone. This 

matter was raised during cross-examination, and Turner testified that he did not 

know why his girlfriend would not talk to the parties to verify his story. Thus, the 

jury was well aware of this matter. Given the record before this Court, there is no 

basis for concluding that the prosecution acted improperly or that defendant was 

unfairly prejudiced by Turner’s status as a witness. 

Porter, 2014 WL 575760 at *8. 

“A decision regarding the endorsement of a witness generally constitutes a state law 

matter within the trial court’s discretion.” Warlick v. Romanowski, 367 F. App’x 634, 643 (6th 

Cir. 2010) (citations omitted). Moreover, “[i]t is well-settled that there is no general 

constitutional right to discovery in a criminal case. Id. (quoting Weatherford v. Bursey, 429 U.S. 

545, 559 (1977)). Additionally, trial court errors in the application of state procedure or 

evidentiary law are generally not cognizable as grounds for federal habeas relief, Estelle, 502 

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U.S. at 67–68. Thus, to the extent that Porter challenges the state trial court’s application of state 

law, the Court will not disturb the Michigan Court of Appeals’ decision.

Still, “[w]hen an evidentiary ruling is so egregious that it results in a denial of 

fundamental fairness, it may violate due process and thus warrant habeas relief.” Bugh v. 

Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (citations omitted). But Porter has failed to 

demonstrate that Turner’s late endorsement denied him a fundamentally fair trial. As the 

Michigan Court of Appeals reasonably concluded, Porter suffered no prejudice as a result of 

Turner’s late endorsement. Turner only came forward as a witness relatively late in the game, 

about 10 days before trial. The prosecution promptly notified defense counsel. Defense counsel 

then was able to interview Turner and investigate his version of events before trial and otherwise 

cross-examine him about his motivation to testify. The Defense also questioned and produced as 

a witness Porter’s third cellmate (Calvin Johnson) to counter Turner’s testimony. (See R. 8-22, 

PID 2550.) Moreover, Porter was not deprived of exculpatory evidence nor denied the ability to 

prepare an adequate defense. In other words, despite Turner’s appearance as a witness, Porter’s 

trial was still fundamentally fair. 

Accordingly, habeas relief is not warranted on this claim. 

F.

Lastly, Porter asserts that he is entitled to habeas relief because the trial court erred and 

violated his confrontation rights by limiting defense counsel’s cross-examination of Richard 

Turner (who was awaiting trial on marijuana and firearm charges) regarding what his sentencing 

guidelines range would be if he pleaded guilty to the charges against him. 

Because Porter did not object on this ground at trial, the Michigan Court of Appeals 

reviewed the claim for plain error as follows: 

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On direct examination, Turner explained that he was not offered anything in 

exchange for his testimony, and was motivated to come forward after discussing 

the matter with his girlfriend. With regard to any plea offers, Turner testified that 

several months earlier, he had been offered, but rejected, a plea agreement 

whereby he would be permitted to plead guilty to the charged offense of 

manufacturing 200 or more plants of marijuana in exchange for dismissal of the 

felony-firearm charge. Tuner stated that he rejected the offer because “the lab 

only had reports back from 80 to 100 plants,” and he was scheduled to be tried on 

the following day. In response to defense counsel’s inquiry on cross-examination 

about whether Turner’s lawyer had discussed “what we call sentencing 

guidelines,” Turner responded, “No. I mean, it’s been gone over several times, but 

it’s been back and forth, so I am not really sure on that.” Thereafter, defense 

counsel was precluded from continuing a line of questioning about “what are 

sentencing guidelines” and what Turner’s guidelines would be if he pleaded 

guilty. Under the circumstances, defendant has not established that Turner’s 

conjecture of what his sentencing guidelines might be if he pleaded guilty had any 

significant relevance for the purpose of challenging Turner’s credibility and bias. 

MRE 401.

Further, the trial court did not preclude defendant from otherwise challenging 

Turner’s credibility and bias. Counsel was allowed to question Turner about his 

current charges, any plea bargaining, his failure to come forward months earlier, 

his girlfriend’s refusal to talk to anyone to verify his story, and his hope to gain 

favor by coming forward shortly before his scheduled trial. Counsel elicited that 

Turner did not initially think that statements about murder were “a big deal,” that 

he had no real explanation for his failure to come forward earlier, and that he 

refused to allow the defense to talk to his former attorney. Also, defense counsel 

questioned Turner about how and why [he/Porter?] and defendant’s third cellmate 

did not hear the conversations that Turner claimed occurred. Given this record, 

the trial court’s decision to preclude irrelevant testimony did not fall outside the 

range of reasonable and principled outcomes, and the decision did not deprive 

defendant of his right of confrontation. 

Porter, 2014 WL 575760 at *9–10. 

To start, Respondent urges that Porter’s failure to make a contemporaneous objection at 

trial amounts to a procedural default, barring habeas review. (R. 7, PID 137.) For the sake of 

efficiency, the Court opts to consider the claim on the merits. See Barrett v. Acevedo, 169 F.3d 

1155, 1162 (8th Cir. 1999) (en banc) (“[J]udicial economy sometimes dictates reaching the 

merits of [a claim or claims] if the merits are easily resolvable against a petitioner while the 

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procedural bar issues are complicated.” (internal citations omitted)); see also Hudson v. Jones,

351 F.3d 212, 215 (6th Cir. 2003).

 In terms of reviewing the merits of the claim, Sixth Circuit case law is inconsistent on 

whether plain error review amounts to a decision “on the merits” for purposes of AEDPA 

deference. See Trimble v. Bobby, 804 F.3d 767, 777 (6th Cir. 2015) (highlighting the 

inconsistencies). In Frazier v. Jenkins, 770 F.3d 485, 497 n.5 (6th Cir. 2014), the Court noted in 

a footnote, “We have repeatedly held that plain-error review is not equivalent to adjudication on 

the merits, which would trigger AEDPA deference.” But in an earlier case, the Court instead held 

that the Michigan Court of Appeals’ “use of the plain-error standard of review, as opposed to the 

clearly erroneous or de novo standards, simply made reversal of the state trial court’s judgment 

less likely, but did not cause the Michigan Court of Appeals to bypass the merits of [the 

petitioner’s] claim and thereby avoid triggering AEDPA deference.” Fleming v. Metrish, 556 

F.3d 520, 532 (6th Cir. 2009).

The Court will follow Flemming and apply AEDPA deference. First, when two Sixth 

Circuit decisions are in direct conflict, this Court is bound by the earlier decision, here 

Flemming. See Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001). Second, while the 

Frazier Court cited a number of cases for the proposition that a decision on plain error is not a 

decision “on the merits” for purposes of AEDPA, none actually reached that holding. Third, the 

Michigan Court of Appeals reviewed the confrontation clause claim for plain error because 

Porter failed to make a contemporaneous objection at trial, thereby failing to preserve the issue 

for review. See Porter, 2014 WL 575760 at *9. And in its review “for plain error affecting 

[Porter’s] substantial rights,” the court considered Porter’s claim at length and ultimately 

concluded that the trial court “did not deprive defendant of his right of confrontation.” Id. at *9–

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10. Stated differently, the court certainly appears to have reached the merits of whether Porter 

suffered a constitutional violation. Finally, Porter does not challenge that AEDPA deference 

applies. 

Applying AEDPA deference, the Michigan Court of Appeals decision was not 

unreasonable.

The Confrontation Clause guarantees a criminal defendant the right to cross-examine 

witnesses. Davis v. Alaska, 415 U.S. 308, 315 (1973). “Cross-examination is the principal means 

by which the believability of a witness and the truth of his testimony are tested. Subject always 

to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, 

the cross-examiner is not only permitted to delve into the witness’s story to test the witness’s 

perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e.,

discredit the witness.” Id. at 316. “[T]his right is not absolute. Instead, the Constitution 

guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is 

effective in whatever way, and to whatever extent, the defense might wish.’” Jordan v. Warden, 

Lebanon Corr. Inst., 675 F.3d 586, 594 (6th Cir. 2012) (quoting Delaware v. Fensterer, 474 U.S. 

15, 20 (1985) (emphasis in original)). Thus, trial courts “retain wide latitude insofar as the 

Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based 

on concerns about, among other things, harassment, prejudice, confusion of the issues, the 

witness’s safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. 

VanArsdall, 475 U.S. 673, 679 (1986). When it comes to challenges based on limits to crossexamination, the Sixth Circuit has explained: 

The key issue is whether the jury had enough information to assess the defense’s 

theory of the case despite the limits on cross-examination. . . . So long as crossexamination elicits adequate information to allow a jury to assess a witness’s 

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credibility, motives, or possible bias, the Sixth Amendment is not compromised 

by a limitation on cross-examination. 

United States v. Callahan, 801 F.3d 606, 624 (6th Cir. 2015) (internal quotation marks and 

citations omitted). 

The Michigan Court of Appeals reasonably found no Confrontation Clause violation. The 

state trial court did not completely restrict defense counsel’s cross-examination of Turner and his 

reasons for testifying at trial. Defense counsel was able to cross-examine Turner freely on a 

range of issues, including Turner’s pending criminal charges and plea negotiations, his 

motivations for testifying against Petitioner, his recall of events, his failure to come forward in a 

more timely manner, and his overall credibility. The jury was thus well aware that Turner had 

pending criminal charges against him and may have hoped to curry favor with prosecuting 

authorities by testifying against Porter, making his credibility an issue. The trial court simply 

sustained the prosecution’s objection on the limited issue that Turner’s sentencing guidelines 

range was irrelevant. This was for good reason: Turner did not have a finalized plea deal in place 

and seemed unsure of his sentencing guidelines range. Further inquiry into sentencing 

consequences was not particularly relevant and would likely have been futile. 

In sum, Porter is not entitled to habeas relief on this claim. 

IV.

For the reasons stated, the Court concludes that Porter is not entitled to federal habeas 

relief on the claims contained in his petition. Accordingly, the Court DENIES and DISMISSES 

WITH PREJUDICE the petition for a writ of habeas corpus. 

In order to appeal the Court’s decision, Porter must obtain a certificate of appealability. 

To obtain a certificate of appealability, a prisoner must make a “substantial showing of the denial 

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is 

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required to show “that reasonable jurists could debate whether . . . the petition should have been 

resolved in a different manner or that the issues presented were adequate to deserve 

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (internal 

quotation marks and citation omitted). A federal district court may grant or deny a certificate of 

appealability when the court issues a ruling on the habeas petition. Castro v. United States, 310 

F.3d 900, 901–02 (6th Cir. 2002) (per curiam). 

Here, reasonable jurists would not debate the correctness of the Court’s rulings on 

Porter’s habeas claims, which are devoid of merit for the reasons explained. Thus, the Court 

DENIES a certificate of appealability.

The Court also DENIES leave to proceed in forma pauperis on appeal as an appeal 

cannot be taken in good faith. See FED. R. APP. P. 24(a); 28 U.S.C. § 1915(a)(3). 

Finally, having been informed that Porter is now confined at the Saginaw Correctional 

Facility, where Thomas Winn is the warden, the correct Respondent is now Thomas Winn, who 

has custody of Porter. See 28 U.S.C. § 2243; 28 U.S.C. foll. § 2254, Rule 2(a); Fed. R. Civ. P. 

81(a)(2). Accordingly, the Court amends the caption for the case to read “DONALD PORTER v. 

THOMAS WINN.” 

IT IS SO ORDERED. 

 s/Laurie J. Michelson 

 LAURIE J. MICHELSON 

Dated: July 25, 2017 U.S. DISTRICT JUDGE 

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court=s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on July 25, 2017. 

s/Keisha Jackson 

Case Manager 

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