UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARRYL COOPER,

Petitioner, Civil Action No. 14-CV-13108

vs. HON. BERNARD A. FRIEDMAN

DUNCAN MACLAREN,

Respondent.

_____________________/

OPINION AND ORDER DENYING PETITIONER’S APPLICATION FOR A WRIT OF

HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,

AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Following a jury trial

in Wayne County Circuit Court, petitioner was convicted of first-degree murder, MICH.COMP.LAWS

§ 750.316, 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. In 2010, he was

sentenced to life imprisonment without the possibility of parole, a concurrent term of six months to

five years imprisonment, and a consecutive terms of two years imprisonment. Petitioner raises

claims concerning the great weight of the evidence, the sufficiency of the evidence, the effectiveness

of trial and appellate counsel, the conduct of the prosecutor, the jury instructions, and the legality

of a search and seizure of evidence. For the reasons stated below, the Court shall deny the petition,

decline to issue a certificate of appealability, and dent petitioner leave to proceed on appeal in forma

pauperis.
II. Facts and Procedural History

Petitioner’s convictions arise from his shooting of a man, Ronald Beard, who was

involved with his girlfriend, Chalaunda Latham. The shooting occurred on a street in Wayne

County, Michigan on May 2, 2010. Defense counsel on direct appeal summarized the trial

testimony as follows:

Late in the evening on Saturday, May 1, 2010, the Defendant, Darryl

Copper, went to the Binford Lounge with Chalaunda Latham and

Tenia Brim. (T1 at 190). Mr. Cooper, Ms. Latham and Ms. Brim

walked to Binford Lounge because it was “only a mile or two” from

the neighborhood where they lived. (T1 at 190). Ronald Beard was

at the Binford Lounge when Mr. Cooper, Ms. Latham and Ms. Brim

arrived. (T1 at 191, 251-252). Mr. Cooper was the boyfriend of Ms.

Latham. (T1 at 248). Mr. Cooper and Ms. Latham were in a

relationship that had been going on for six years. (T1 at 200, 249).

Mr. Beard and Ms. Latham had been friends for thirteen or fourteen

years, and also had an ongoing romantic relationship. (T1 at 199,

249). Mr. Cooper and Mr. Beard were aware that Ms. Latham was

seeing both of them. (T1 at 237, 249). Ms. Latham had attended a

movie with Mr. Beard the day before. (T1 at 251).

Mr. Cooper, Ms. Latham and Ms. Brim stayed at the Binford Lounge

for about an hour. (T1 at 216). As Mr. Cooper, Ms. Latham and Ms.

Brim were leaving the Binford Lounge, Mr. Beard threw water on

Ms. Latham. (T1 at 191, 253). Ms. Latham “laughed it off.” (T1 at

191, 253.)

Mr. Beard followed Mr. Cooper, Ms. Latham and Ms. Brim as they

left the Binford Lounge and headed towards Mr. Cooper’s house. (T1

at 192, 199, 217). Mr. Beard initially followed in his car, but later got

out of his car, and followed on foot as Mr. Cooper, Ms. Latham and

Ms. Brim crossed through fields. (T1 at 193, 257). Mr. Beard was

calling to Ms. Latham, and yelling at her to come back. (T1 at

192-193, 217, 258).

Mr. Cooper and Ms. Latham, with Mr. Beard following, crossed into

a second field, while Ms. Brim stayed on the sidewalk and did not go

into the second field with them. (T1 194-195). Ms. Brim watched Mr.

Cooper, Ms. Latham and Mr. Beard in the field, and testified that she

could overhear what they were saying. (T1 at 194-197). It appeared

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to Ms. Brim that Mr. Cooper and Mr. Beard were “about to have a

confrontation,” but “they never had words with each other” and she

saw no physical contact between the two men. (T1 at 194, 197, 235).

Ms. Latham testified that Mr. Cooper complained that he had never

been disrespected like that before, and Ms. Brim heard him say this

as well. (T1 at 259; T1 at 195).

Ms. Latham stood between Mr. Cooper and Mr. Beard, trying to

prevent them from having a confrontation. (T1 at 195, 197). Mr.

Beard was heavier and taller than Mr. Cooper. (T1 at 254, 264). Both

Mr. Cooper and Mr. Beard were telling Ms. Latham to “come here,”

and “calling her back and forth.” (T1 at 196).

Mr. Beard slapped or hit Ms. Latham. (T1 at 196, 220, 222, 224,

263). Ms. Latham testified that he pushed or slapped her hard enough

to make her fall down. (T1 at 263, 264). Ms. Brim testified that she

saw Mr. Beard slap Ms. Latham so hard that she “spinned.” (T1 at

223).

Ms. Latham denied being angry about this, though he had never hit

her before, but she wanted to get away from him or avoid him by

walking away. (T1, 292-293, 295). Mr. Beard was jealous and acting

out of character. (T1, 296; T2, 19).

Ms. Latham testified that Mr. Cooper also slapped her. (T1 at

263-264). Ms. Brim testified that she saw Mr. Cooper push and shove

Ms. Latham. (T1 at 196). After Mr. Cooper slapped (or pushed) Ms.

Latham, she saw a “little pocket knife” in his hand, “like the kind you

get from the gas station.” (T1 at 264).

The encounter in the field between Mr. Cooper, Mr. Beard and Ms.

Latham ended when Mr. Cooper ran off in the direction of his house

on Bassett Street. (T1 at 198, 222, 265). Mr. Beard got in his car and

drove away. (T1 at 198). Ms. Brim caught up with Ms. Latham, and

they walked as Ms. Brim called another friend, Shaunte Johnson. (T1

at 198).

Ms. Johnson picked up Ms. Brim and Ms. Latham in her car. (T1 at

199, 266; T2 at 25). Ms. Brim got into the passenger seat, and Ms.

Latham sat in the back. (T1 at 199, 266; T2 at 26). Ms. Latham used

Ms. Brim’s cell phone to call Mr. Cooper several times, but he did

not answer. (T1 at 200, 201, 267). After fifteen or twenty minutes of

driving around, Ms. Latham asked Ms. Johnson to drive to Mr.

Cooper house so they could check on him. (T1 at 225-226; T1 at 201,

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266; T2 at 27). Ms. Latham denied using the time to find a weapon

to protect herself. (T2, 9).

At Mr. Cooper’s house, the lights were off, and the three women did

not get out of the car. (T1 at 226; T2 at 27-28). Ms. Latham continued

using Ms. Brim’s cell phone to try to call Mr. Cooper, but he was not

answering. (T1 at 269; T2 at 28). As the three women started to drive

away from Mr. Cooper’s house, Ms. Latham noticed Mr. Beard pull

up and park his car two houses down and across the street from Mr.

Cooper’s house. (T1 at 201-202, 229, 269-270). Ms. Johnson pulled

the car up beside Mr. Beard’s car, with the back window beside Mr.

Beard’s driver seat window, so Ms. Latham could speak to Mr.

Beard. (T1 at 202; T1 at 227; T2 at 30). Ms. Latham and Mr. Beard

had a conversation, and according to Ms. Brim, they both were acting

normal. (T1 at 203). However, Ms. Latham testified that Mr. Beard

was still not speaking nicely to her. (T1 at 271).

As Ms. Latham and Mr. Beard were talking, Ms. Latham and Ms.

Brim both saw Mr. Cooper “running up the street.” (T1 at 203-204;

272) Ms. Brim did not see anything in Mr. Cooper’s hand. (T1 at

204). Ms. Latham saw him running and carrying a long gun. (T1 at

272). Ms. Johnson saw him carrying a big shotgun, and said out loud,

“He has a big-ass gun!” (T1 at 204, 274; T2 at 31).

Ms. Latham testified that Mr. Cooper had the gun pointing down. (T1

at 273). Ms. Johnson testified that she saw Mr. Cooper level the gun

and aim it at Mr. Beard’s car before she pulled the car away. (T1 at

32, 35). The gun went in the car on the driver’s side window. (T2,

68).

Ms. Latham and Ms. Brim ducked down, and Ms. Johnson drove the

car away. (T1 at 205). Ms. Latham, Ms. Brim and Ms. Johnson heard

gunshots as they were pulling away. (T1 at 205, 275). Ms. Brim

testified that she heard two gunshots. (T1 at 205). Ms. Latham and

Ms. Johnson testified that they heard three gunshots. (T1 at 275; T2

at 33). Ms. Latham, Ms. Brim and Ms. Johnson did not see a weapon

fired. (T1 at 236-237; T2 at 33, 35).

After hearing the gunshots, Ms. Johnson, Ms. Latham and Ms. Brim

drove to Ms. Johnson’s house because they were scared. (T1 at 207;

T2 at 36). Ms. Latham used Ms. Brim’s cell phone first to try to call

Mr. Beard, then to call Mr. Cooper. (T1 at 278) Mr. Cooper

answered. (T1 at 279). Mr. Cooper told her where he was, asked

where she was and told her to get dropped off at his house. (T1 at

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280). Ms. Latham lied to Mr. Cooper about her location, and did not

get dropped off at his house. (T1 at 280).

Ms. Latham, Ms. Johnson and Ms. Brim did not call the police. (T1

at 284). Ms. Brim testified that in their neighborhood, “you don’t

voluntarily go to the police telling them that you saw a murder,” and

that “people firebomb other people’s houses and stuff” for calling the

police. (T1 at 208). They did not go into Ms. Johnson’s house, and

after five minutes sitting in the car in front of Ms. Johnson’s house,

they returned to Mr. Cooper’s house. (T1 at 207-208).

Mr. Brim testified that the first time they drove past Mr. Cooper’s

house, they saw Mr. Beard’s car still parked across the street with the

headlights on. (T1 at 208, 231, 281). The second time they circled the

block, the police were there. (T1 at 209). Ms. Johnson, Ms. Brim and

Ms. Latham all got out of Ms. Johnson’s car. (T1 at 209-210). Ms.

Brim testified she was crying and upset. (T1 at 209). They did not

speak to the police who were present. (T1 at 209).

Ms. Latham testified that when they returned to Mr. Cooper’s house,

Ms. Johnson parked the car down the street, and that Ms. Johnson got

out of the car to go back to Mr. Beard’s car to see what had

happened. (T1 at 283). According to Ms. Latham, Ms. Johnson then

returned to her car, and told Ms. Latham and Ms. Brim that “Ron

ain’t moving.” (T1 at 283).

Ms. Johnson testified that when they returned to Mr. Cooper’s house,

the police were already there. (T1 at 36). The three women were in

a “frenzy” wondering what had happened. (T1 at 37). Ms. Johnson

volunteered to get out of the car and check what had happened. (T1

at 37). Ms. Johnson did not speak to the police who were there

because that is not something that people in her neighborhood do and

she was concerned the police would not believe her anyway. (T1 at

37-38).

Ms. Johnson, Ms. Brim and Ms. Latham all testified that, after

realizing that Mr. Beard was dead, they walked down the street

together until they saw the boyfriend of Ms. Brim’s sister driving

down the street, and he took the three of them home. (T1 at 210,

283-284; T2 at 38).

Ms. Johnson, Ms. Brim and Ms. Latham did not attempt to contact

the police until the following Tuesday. (T1 at 210; T2 at 39). They

went together to two police stations in their area, but did not make

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statements at that time. (T1 at 210-215, 235, 286). Ms. Brim testified

that eventually they made statements to the police when the police

came and got them when they were together at a McDonald’s. (T1 at

215, 236). Ms. Latham testified that she made a statement after

contacting a detective. (T1 at 288). Ms. Latham denied that she, Ms.

Brim or Ms. Johnson had a gun. (T1, 289).

A 911-tape was played for the jury over defense objection,

identifying the shooter as a man. (T2, 7, 70-74, T3 at 46; see also T3,

11).

Officer Adrian Flowers-Yancey, who went to the location of the

shooting after hearing about it on her patrol car radio, testified that

she saw a man slumped over in the driver’s seat of his car (T2 at

76-77). She saw gunshot wounds under the man’s arm, on the left

side of his body, which was facing the driver side window. (T2 at

77-78). Officer Flowers-Yancey “canvassed the area” to try to get

statements about the shooting. (T2 at 78). Only one person would talk

to Officer Flowers-Yancey. The person described the suspect as a

“tall, black male carrying a long gun.” (T2 at 79). Officer

Flowers-Yancey looked for evidence at the location of the shooting,

specifically shell casings or weapons, but none were found. (T2 at

81).

Officer Raymond Diaz, an evidence technician, testified that he went

to the location of the shooting on the night it happened. Officer Diaz

prepared two sketches of the scene of the shooting, and one of the

two was admitted into evidence at trial. (T2 at 113-114). Officer Diaz

looked for evidence, such as firearms, gun casings or bullets, but did

not find any. (T2 at 115-116). He testified that the lighting in the area

of the shooting was “at times poor” because the streetlight would

intermittently turn off, and then back on again. (T2 at117).

Officer Lori Briggs, also an evidence technician, testified that she

went to Mr. Cooper’s home on May 6, 2010 after other officers had

gone there with a search warrant. (T2 at 95). Officer Briggs found

and took various rifles, shotguns, and ammunition. (T2 at 96-97). She

identified each of these weapons and ammunition at trial, and they

were admitted into evidence. (T2 at 98-110).

It was stipulated to that a bullet jacket and a portion of a bullet jacket

were removed from the body of Mr. Beard. (T2 at 161)

Sergeant Robert Rayer, a specialist in the Firearms Identification

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Unit, testified that none of the weapons taken from Mr. Cooper’s

home could have fired the bullet jacket found in Mr. Beard. (T2 at

160). He determined the bullet jacket had been a bullet within the

7.62mm caliber class. (T2 at 158). The bullet jacket was likely fired

by an AK-47 or SKS rifle because those are the most common

weapons that use 7.62mm ammunition. (T2 at 158).

Officer Kevin Johnson testified he went to Detroit Receiving

Hospital on the night the shooting happened, and received Mr.

Beard’s clothing from the hospital. (T2 at 88-89). The items of

clothing that Officer Johnson received were a black t-shirt, a thermal

t-shirt, a belt, a pair of pants and one black tennis shoe. (T2 at 91).

Officer Johnson also received from the hospital a small bag

containing a substance suspected to be cocaine. (T2 at 91-93).

Dr. Boguslaw Pietak, a forensic pathologist, testified that he

performed an autopsy on Mr. Beard. (T2 at 163; 166). He determined

the cause of Mr. Beard’s death was multiple gunshot wounds and the

manner of death was homicide. (T2 at 166-167). The three gunshot

wounds were to the left side of his chest. (T2 at 167). Dr. Pietak did

not see any evidence of close-range firing. (T2 at 171). However, he

also testified that there are circumstances where close-range firing

can occur, but there would not be any evidence of it on the victim’s

body. (T2 at 171). This could happen if the victim was wearing layers

of clothing, like the t-shirt and thermal shirt that Mr. Beard was

wearing. (T2 at 172-173). Mr. Beard’s toxicology report reflected

positive results for alcohol and ecstasy. (T2 at 176).

Sergeant Amanda Crooker, a specialist in the Forensic Science

Division, testified that there was only one hand print on the weapons

from Mr. Cooper’s home that could be used for identification

purposes. (T2 at 136-138; 140). That hand print on the gun did not

match samples she had of Mr. Cooper’s hand print or Mr. Beard’s

hand print. (T2 at 137). Officer Crooker did not have samples of the

handprints of Ms. Latham, Ms. Brim and Ms. Johnson, and was not

asked to determine if the handprint on the gun from Mr. Cooper’s

home could have belonged to any of the three women. (T2 at 141).

Corporal Ki Sobol, an investigator for the Wayne County Sheriff’s

Department, testified that he monitored Mr. Cooper’s phone calls

from jail that Mr. Cooper made on May 20, 2010 and May 26, 2010.

(T2 at 119-121). Both calls lasted fifteen minutes each, and both calls

were to a phone number assigned to Tawana McGee. (T2 at

121-122). Recordings of the two phone calls were admitted into

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evidence and played for the jury. (T2 at 122-124; 126). Mr. Cooper

described Ms. Latham as the “fuel for the fire” on the night of the

incident. (See e.g. T3, 13-149). Andrea Dudley testified that she is

Mr. Beard’s sister, and that she knew Mr. Cooper well because their

mothers were close friends. (T2 at 187).

It was stipulated that Mr. Cooper was previously convicted of a

felony, and that his right to possess a firearm were not restored. (T2,

188).

Def.’s App. Br., pp. 3-12 (footnotes omitted).

Petitioner did not testify at trial, but his defense was that the evidence failed to show

that Ronald Beard was shot by any of the rifles known to be owned by the petitioner and that the

three eyewitnesses, Chalaunda Latham, Tenia Brim, and Shaunte Johnson, were not credible.

As noted, the jury convicted petitioner of first-degree murder, felon in possession,

and felony firearm. The trial court sentenced him to life imprisonment without parole, a concurrent

term of one and a half to five years imprisonment, and a consecutive term of two years

imprisonment.

Petitioner filed an appeal of right with the Michigan Court of Appeals raising several

claims, including most of those contained in his current petition. The Michigan Court of Appeals

affirmed his convictions and sentences. See People v. Cooper, No. 301485, 2013 WL 2120274

(Mich. Ct. App. May 16, 2013). Petitioner filed an application for leave to appeal with the Michigan

Supreme Court, which was denied. See People v. Cooper, 495 Mich. 882, 838 N.W.2d 553 (Oct.

28, 2013).

Petitioner thereafter filed his federal habeas petition. He raises the following claims:

I. The state court’s decision that petitioner is not entitled to a new trial where

the conviction for murder is against the great weight of the evidence

presented, is a violation of his Fifth and Fourteenth Amendment due process

rights established by the U.S. Constitution and is an unreasonable application

8
of Jackson v. Virginia.

II. Petitioner Cooper’s Sixth Amendment right to effective assistance of trial

counsel, and Fifth Amendment right to a fair trial under the U.S. Constitution

was violated by counsel’s actions. Thus, counsel’s actions violated

petitioner’s rights in the following manner by:

a. Defense counsel failed to move for a continuance of petitioner’s trial

when defense counsel had another trial scheduled, at the same time,

in another courtroom, within the same courthouse. As a result, much

of the trial was conducted without counsel available to object to

improper testimony or questioning, or to offer guidance to petitioner.

b. Defense counsel failed to put forth a defense as guaranteed by the

U.S. Constitution where counsel was made aware of several alibi

witnesses, yet failed to file the alibi defense as required by Michigan

statute, or call these witnesses.

c. Defense counsel failed to move the court to provide adequate jury

instructions on the credibility of identification under the poor lighting

conditions, or request that the court consider manslaughter or failed

to object when the court refused to consider manslaughter as a lesser

offense where there were facts in support thereof.

d. Defense counsel failed to request a hearing, file pretrial motions, or

otherwise challenge the introduction of irrelevant evidence, including

guns not shown to be relevant, the decedent’s bloody clothes, and

uncharged bad acts contaminated petitioner’s trial thus violating his

rights to a fair trial under the Fifth Amendment to the U.S.

Constitution.

e. Defense counsel failed to request or receive discovery prior to the

start of trial. At sentencing, the judge ordered the discovery material

be provided to defendant because of counsel’s failure to request it.

These documents were not available to defendant as ordered.

f. Defense counsel failed to effectively use the power of

cross-examination to challenge the witness testimony and bring the

inconsistencies to the jury’s attention.

g. The cumulative effects of counsel’s errors denied petitioner his due

process rights to a fair trial guaranteed by the U.S. Constitution. U.S.

Const. V, VI, XIV.

9
III. Petitioner was denied his Sixth Amendment right to the effective assistance

of appellate counsel on his only appeal of right when counsel failed to raise

numerous trial counsel issues of error in violation of Strickland v.

Washington.

IV. Petitioner’s rights under the federal and state constitution to be free from

unreasonable search and seizure were violated when the police department

searched his home without probable cause. If relief is not warranted as plain

error, then counsel was constitutionally ineffective for failing to object.1

V. The prosecutor denied petitioner his constitutional right to a fair trial by

making multiple arguments that were without evidentiary support and highly

prejudicial.

Respondent has filed an answer to the petition contending that it should be denied. The petitioner

has filed a reply to that answer.

1

The petitioner lists this same issue as both Claim IV and Claim V in his petition.

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III. Standard of Review

The following standard applies in federal habeas cases:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim –

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

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

State court proceedings.

28 U.S.C. § 2254(d). “A state court’s decision is ‘contrary to’ . . . clearly established law if it

‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it

‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court

and nevertheless arrives at a result different from [that] precedent.’” Mitchell v. Esparza, 540 U.S.

12, 15-16 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone,

535 U.S. 685, 694 (2002). “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal

habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from

[the Supreme] Court but unreasonably applies that principle to the facts of petitioner’s case.” 

Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535

U.S. at 694. However, “[i]n order for a federal court find a state court’s application of [Supreme

Court] precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or

erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539

U.S. at 520-21; see also Williams, 529 U.S. at 409. “AEDPA thus imposes a ‘highly deferential

standard for evaluating state-court rulings,’ and ‘demands that state-court decisions be given the

11
benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333

n.7).

The United States Supreme Court has held that “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, 131 S. Ct. 770, 786 (2011). 

The Court emphasized “that even a strong case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. Pursuant to § 2254(d), “a habeas court must determine what

arguments or theories supported or . . . could have supported, the state court’s decision; and then it

must ask whether it is possible fairminded jurists could disagree that those arguments or theories are

inconsistent with the holding in a prior decision” of the Supreme Court. Id. Thus, in order to obtain

federal habeas relief, a state prisoner must show that the state court’s rejection of his 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.

Section 2254(d)(1) limits a federal habeas court’s review to a determination of

whether the state court’s decision comports with clearly established federal law as determined by

the Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at 412; see

also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Section 2254(d) “does not require a state

court to give reasons before its decision can be deemed to have been adjudicated on the merits.” 

Harrington, 131 S. Ct. at 785 (internal quotation marks omitted). Furthermore, it “does not require

citation of [Supreme Court] cases–indeed, it does not even require awareness of [Supreme Court]

cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” 

Early v. Packer, 537 U.S. 3, 8 (2002). While the requirements of “clearly established law” are to

12
be determined solely by Supreme Court precedent, the decisions of lower federal courts may be

useful in assessing the reasonableness of the state court’s resolution of an issue. See Stewart v.

Erwin, 503 F.3d 488, 493 (6th Cir. 2007).

Further, a state court’s factual determinations are entitled to a presumption of

correctness on federal habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this

presumption with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th

Cir. 1998).

IV. Discussion

A. Procedural Default

As an initial matter, respondent contends that several of the petitioner’s habeas claims

are barred by procedural default. However, federal courts on habeas review “are not required to

address a procedural-default issue before deciding against the petitioner on the merits.” Hudson v.

Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). 

The Supreme Court has explained the rationale behind such a policy: “Judicial economy might

counsel giving the [other] question priority, for example, if it were easily resolvable against the

habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law.” 

Lambrix, 520 U.S. at 525. In this case, the procedural default issues are complicated, and the

substantive issues are easier to resolve. Consequently, the interests of judicial economy are best

served by addressing the merits of the claims.

B. Merits

1. Great Weight/Insufficient Evidence Claim

Petitioner first asserts that he is entitled to habeas relief because the jury’s verdict was

13
against the great weight of the evidence and the prosecution failed to present sufficient evidence to

support his convictions. Respondent contends that this claim lacks merit.

Petitioner is not entitled to habeas relief on his claim that the jury verdict was against

the great weight of the evidence. Federal habeas review is not available to correct errors of state

law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas

court to reexamine state-court determinations on state-law questions”). The federal constitution

requires only that the evidence be sufficient to sustain the conviction under the standard established

in Jackson v. Virginia, 443 U.S. 307 (1979). Where the evidence is sufficient as a matter of due

process, a claim that the verdict was against the weight of the evidence presents a state law issue

which is not cognizable on habeas review. See Cukaj v. Warren, 305 F. Supp. 2d 789, 796 (E.D.

Mich. 2004); Dell v. Straub, 194 F. Supp. 2d 629, 648 (E.D. Mich. 2002). 

The question on a sufficiency of the evidence claim 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.” Jackson v. Virginia, 443 U.S. 307,

319 (1979). The Jackson standard must be applied “with explicit reference to the substantive

elements of the criminal offense as defined by state law.” Brown v. Palmer, 441 F.3d 347, 351 (6th

Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16).

A federal habeas court views this standard through the framework of 28 U.S.C.

§ 2254(d). See Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus, under the AEDPA,

challenges to the sufficiency of the evidence “must survive two layers of deference to groups who

might view facts differently” than a reviewing court on habeas review – the factfinder at trial and

the state court on appellate review. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). “[I]t is the

14
responsibility of the jury – not the court – to decide what conclusions should be drawn from the

evidence admitted at trial.” Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). “A reviewing court does not

re-weigh the evidence or re-determine the credibility of the witnesses whose demeanor has been

observed by the trial court.” Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). The

“existence of sufficient evidence to convict . . . defeats a petitioner’s claim.” Id. at 788-89.

Under Michigan law, first-degree premeditated murder requires proof that the

defendant intentionally killed the victim and that the killing was premeditated and deliberate. See

People v. Kelly, 231 Mich. App. 627, 642 (1998); MICH.COMP.LAWS § 750.316. Premeditation and

deliberation may be established by evidence showing “(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.” People v. Schollaert, 194 Mich. App. 158, 170 (1992). 

The elements of felon in possession of a firearm are (1) the defendant was convicted of a felony,

(2) the defendant possessed a firearm, and (3) at the time of possession less than three or five years,

depending on the underlying felony, has passed since the defendant completed his term of

incarceration, satisfied all conditions of probation and parole, and paid all fines. See People v.

Perkins, 262 Mich. App. 267, 270, 686 N.W.2d 237 (2004); MICH. COMP. LAWS § 750.224f. The

elements of felony firearm are that the defendant possessed a firearm during the commission of, or

an attempt to commit, a felony offense. See People v. Akins, 259 Mich. App. 545, 554; MICH.COMP.

LAWS § 750.227b.

The prosecution must prove beyond a reasonable doubt that the defendant committed

the charged offense. See People v. Kern, 6 Mich. App. 406, 409 (1967). Direct or circumstantial

evidence and reasonable inferences arising from that evidence may constitute satisfactory proof of

15
the elements of an offense, including the identity of the perpetrator and the defendant’s intent or

state of mind. See People v. Nowack, 462 Mich. 392, 402-03 (2000); People v. Dumas, 454 Mich.

390, 398 (1997); People v. Jolly, 442 Mich. 458, 466 (1993). The use of a lethal weapon supports

an inference of an intent to kill. See People v. Turner, 62 Mich. App. 467, 470 (1975).

Applying the Jackson standard, the Michigan Court of Appeals denied relief on this

claim. The court explained:

Cooper also argues, in a rambling brief submitted on his own behalf,

that there was insufficient evidence to support his convictions.

Specifically, he summarizes evidence—particularly the eye

witnesses' testimony—that he believes was incredible and concludes

that his convictions must be reversed as a result. We will not second

guess the jury's resolution of credibility disputes. Davis, 241 Mich

App at 700. And, when the witness testimony is combined with the

other evidence, there was sufficient evidence to support each

conviction. As already discussed under his challenge premised on the

great weight of the evidence, it was undisputed that someone shot and

killed Beard on the day at issue. There was also direct testimony to

establish that Cooper was the one who shot and killed Beard and that

he did so after returning to his home, retrieving a weapon, and then

returning to find Beard some 20 minutes or more after having an

altercation with him. In addition, the parties stipulated that Cooper

was ineligible to possess a firearm. When viewed in the light most

favorable to the prosecution, this evidence was sufficient to permit a

rational trier of fact to find each element of the charged offenses had

been proved beyond a reasonable doubt. Roper, 286 Mich App at 83.

Consequently, there was sufficient evidence to support Cooper's

convictions.

Cooper, 2013 WL 2120274, at *5 (footnote omitted).

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application federal law. The evidence presented at trial, viewed in the light most

favorable to the prosecution, established that petitioner committed the crimes and acted with the

requisite intent. The eyewitness testimony of Chalaunda Latham, Tenia Brim, and Shaunte Johnson,

16
if believed, established beyond a reasonable doubt that the petitioner had an altercation with Ronald

Beard, that the petitioner returned to his home and obtained a rifle, that he confronted Beard who

was in his car on the street several minutes later, and that he shot at Beard through the car window,

killing him. The parties stipulated that the petitioner was a felon who was ineligible to possess a

firearm. This evidence was sufficient to support petitioner’s convictions for first-degree murder,

felon in possession, and felony firearm.

Petitioner challenges the credibility of the prosecution witnesses and the jury’s

evaluation of the evidence presented at trial. However, it is for the fact-finder at trial, not a federal

habeas court, to resolve evidentiary conflicts. See Jackson, 443 U.S. at 326; Martin v. Mitchell, 280

F.3d 594, 618 (6th Cir. 2002). The jury’s verdict, and the Michigan Court of Appeals’ decision

affirming that verdict, were reasonable. Habeas relief is not warranted on this claim.

2. Ineffective Assistance of Trial Counsel Claims

Petitioner next argues that he is entitled to habeas relief because his rial counsel was

ineffective for moving for a continuance due to a scheduling conflict, failing to pursue an alibi

defense, failing to request jury instructions, failing to object to the introduction of irrelevant

evidence, failing to obtain/provide him with discovery prior to sentencing, and failing to properly

cross-examine witnesses. Petitioner further argues that he is entitled to habeas relief due to the

cumulative effect of trial counsel’s alleged errors. Respondent contends that some of these claims

are barred by procedural default and that all of the claims lack merit.

The Sixth Amendment guarantees a criminal defendant the right to the effective

assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set

forth a two-prong test for determining whether a habeas petitioner has received ineffective assistance

17
of counsel. First, a petitioner must prove that counsel’s performance was deficient. This requires

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

guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687. Second, a petitioner must

establish that counsel’s deficient performance prejudiced the defense. Counsel’s errors must have

been so serious that they deprived the petitioner of a fair trial or appeal. Id. 

To satisfy the performance prong, petitioner must identify acts that were “outside the

wide range of professionally competent assistance.” Id. at 690. The reviewing court’s scrutiny of

counsel’s performance is highly deferential. See id. at 689. There is a strong presumption that trial

counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment. See id. at 690. Petitioner bears the burden of overcoming the presumption

that the challenged actions were sound trial strategy.

As to the prejudice prong, petitioner must show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

 Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome

of the proceeding. See id. “On balance, the benchmark for judging any claim of ineffectiveness

must be whether counsel’s conduct so undermined the proper functioning of the adversarial process

that the [proceeding] cannot be relied on as having produced a just result.” Id. at 686.

A federal court’s consideration of ineffective assistance of counsel claims arising

from state criminal proceedings is quite limited on habeas review due to the deference accorded trial

attorneys and state appellate courts reviewing their performance. “The standards created by

Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review

is ‘doubly’ so.” Harrington, 562 U.S. at 105 (citations omitted). “When § 2254(d) applies, the

18
question is not whether counsel’s actions were reasonable. The question is whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.

Petitioner first argues that trial counsel was ineffective for failing to move for a

continuance due to a scheduling conflict with another trial. Citing the Strickland standard, the

Michigan Court of Appeals denied relief on this claim. The court explained in relevant part:

Cooper argues that he was denied the effective assistance of counsel

because his lawyer was conducting a trial in another case at the same

time. The existing record affords no basis to conclude that his

lawyer's performance fell below an objective standard of

reasonableness. She was present for all proceedings in this case. And

it was only the final day of trial, at which closing arguments were

made and jury instructions were given, that she participated in

another trial; even so, the trial court in this case started promptly at

9:00 a.m. to accommodate defense counsel, counsel made her closing

argument and attended all of the proceedings, and she was then

excused for the other trial while the jury deliberated. There is no

indication that her performance was affected in any manner by the

other trial. Further, the record does not suggest a reasonable

probability that the outcome of the proceedings would have been

different but for this scheduling conflict. Although the reading of the

verdict was delayed for approximately two hours after the jury

reached a verdict, the jury was never informed that defense counsel

had another trial or that this was the cause for the delay in reading the

verdict. Accordingly, because Cooper has not established either

deficient performance or prejudice, his ineffective assistance of

counsel claim fails. Uphaus, 278 Mich App at 185.

Cooper, 2013 WL 2120274, at *5.

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law. Petitioner fails to present any facts to demonstrate that trial

counsel operated under a conflict of interest, that counsel was absent for any part of his trial, that

counsel’s schedule affected her performance at his trial, or that he was prejudiced by the fact that

counsel had another trial near the time of his trial. Habeas relief is not warranted on this claim.

19
Petitioner next aruges that trial counsel was ineffective for failing to file an alibi

notice, investigate witnesses, and pursue an alibi defense. The Michigan Court of Appeals denied

relief on this claim, explaining:

Cooper next contends that he was denied effective assistance by his

lawyer's failure to conduct a pretrial investigation or call certain

character or alibi witnesses. In support of his contention, Cooper cites

the preliminary examination transcript where his lawyer read a list of

names of potential witnesses that he wanted sequestered. He argues

that these witnesses were character or alibi witnesses that his lawyer

failed to investigate and, if he had investigated them and called them

at trial, the witnesses' testimony would have proved his good

character and that he was not at the scene. However, reviewing this

claim on the record alone, there is no indication that Cooper's lawyer

failed to investigate these witnesses or that any of the witnesses

would have testified favorably to Cooper. We must presume that his

lawyer acted within the range of reasonable professional assistance

and, in doing so, we must “affirmatively entertain the range of

possible reasons for the act or omission” to determine whether there

“might have been a legitimate strategic reason for the act or

omission.” Gioglio, 296 Mich App at 22–23. Given the lack of

evidence that Cooper's lawyer failed to investigate these witnesses or

that they would have been able to testify to Cooper's benefit, we must

presume that she did investigate these witnesses and determined that

their testimony was unhelpful. Id. Cooper has not overcome the

presumption that his lawyer provided effective assistance.

Cooper, 2013 WL 2120274, at *4.

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law. Defense counsel must conduct a reasonable investigation

into the facts of a defendant’s case, or make a reasonable determination that such investigation is

unnecessary. See Wiggins, 539 U.S. at 522-23; Strickland, 466 U.S. at 691; Stewart v Wolfenbarger,

468 F.3d 338, 356 (6th Cir. 2007); Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). The duty to

investigate “includes the obligation to investigate all witnesses who may have information

concerning . . . guilt or innocence.” Towns, 395 F.3d at 258. Nonetheless, decisions as to what

20
evidence to present and whether to call certain witnesses are presumed to be matters of trial strategy. 

When making strategic decisions, counsel’s conduct must be reasonable. See Roe v. Flores-Ortega,

528 U.S. 470, 481 (2000); Wiggins, 539 U.S. at 522-23. The failure to call witnesses or present

other evidence constitutes ineffective assistance of counsel only when it deprives a defendant of a

substantial defense. See Chegwidden v. Kapture, 92 F. App’x 309, 311 (6th Cir. 2004); Hutchison

v. Bell, 303 F.3d 720, 749 (6th Cir. 2002).

In the present case, petitioner states that he gave trial counsel contact information for

unidentified friends who could be potential alibi witnesses, but he does not allege any facts to show

that trial counsel, in fact, failed to investigate relevant witnesses, particularly those who may have

been able to provide an alibi or other favorable defense testimony. In fact, petitioner admits that he

has been unable to ascertain the extent of trial counsel’s investigation into such matters. See Pet.’s

Br. at 32. Petitioner’s assertions about counsel’s investigation, or lack thereof, are thus purely

speculative. Moreover, counsel may have reasonably decided not to call petitioner’s friends as alibi

witnesses due to concerns about their credibility. See, e.g., Stadler v. Berghuis, 483 F. App’x 173,

176-77 (6th Cir. 2012). Counsel may have also believed that contesting the prosecution’s case and

casting doubt on the credibility of prosecution witnesses would be more effective in creating

reasonable doubt than presenting an alibi defense which could be subjected to significant challenge. 

See, e.g., Hale v. Davis, 512 F. App’x 516, 522 (6th Cir. 2013. Such a strategy was particularly

reasonable here where three eyewitnesses who knew the petitioner positively identified him as the

perpetrator of the crime. See Ballinger v. Prelesnik, 709 F.3d 558, 563 (6th Cir. 2013). The fact that

counsel’s strategy was ultimately unsuccessful does not mean that counsel was ineffective. See

Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002) (noting that an ineffective assistance claim

21
“cannot survive so long as the decisions of a defendant’s trial counsel were reasonable, even if

mistaken”).

Petitioner also fails to show that he was prejudiced by counsel’s conduct. He fails

to show what more trial counsel would have discovered upon further investigation which would

have benefitted the defense or affected the outcome at trial. For example, he fails to provide

affidavits from any witnesses who were not called to testify at trial setting forth their proposed

testimony. As discussed above, conclusory allegations without evidentiary support are insufficient

to justify habeas relief. Habeas relief is not warranted on this claim.

Petitioner next asserts that trial counsel was ineffective for failing to request jury

instructions on the credibility of identifications and the use of inconsistent statements to impeach

a witness. The Michigan Court of Appeals denied relief on this claim, explaining:

we shall address Cooper's argument that the trial court erred in failing

to instruct the jury on the reliability of identification testimony. This

issue is waived because defense counsel expressed satisfaction with

the jury instructions by stating that she had no objections. People v.

Kowalski, 489 Mich 488, 504–505; 803 NW2d 200 (2011). In any

event, the record reflects that the trial court instructed the jury at

length regarding the consideration of identification testimony.

Cooper's argument is therefore unavailing and his ineffective

assistance of counsel argument on this matter also fails given that he

has not established the factual predicate for his claim. People v.

Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

Cooper, 2013 WL 2120274, at *9.

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law. Petitioner’s claim is belied by the record. The record

indicates that the trial court properly instructed the jury on the consideration of identification

testimony, inconsistent statements, and the evaluation of witness testimony. See 10/4/10 Trial Tr.

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at 47-50, 56-57. Because the trial court provided adequate instructions on such matters, petitioner

cannot establish that trial counsel erred or that he was prejudiced by counsel’s conduct in this regard. 

Counsel cannot be deemed ineffective for failing to make a futile or meritless objection. Habeas

relief is not warranted on this claim.

Petitioner next asserts that trial counsel was ineffective for failing to object to the

admission of irrelevant evidence, including guns and the victim’s bloody clothes. The Michigan

Court of Appeals denied relief on this claim, explaining:

Cooper contends that his lawyer was ineffective for failing to object

to the admission of guns recovered from his home and Beard's bloody

clothes on the ground that this evidence “prove[d] nothing[.]”

Relevant evidence is generally admissible. MRE 402. Evidence is

relevant if it has “any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” MRE 401.

Here, the challenged evidence was relevant. The fact that Cooper had

several long guns in his home tends to make it more likely than not

that he had access to a long gun like the one he was seen carrying on

the day at issue. The admission of Beard's clothing was also relevant;

it helped to explain why there was no evidence from his autopsy that

he was shot at close range. Because the evidence was relevant,

Cooper's lawyer cannot be faulted for failing to object. People v.

Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).

Cooper, 2013 WL 2120274 at *4.

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law. The Michigan Court of Appeals’ determination that the

evidence was properly admitted under the Michigan Rules of Evidence is binding on this court. See

Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975); Sanford

v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Given that the evidence was properly admitted under

Michigan law, petitioner cannot establish that trial counsel erred and/or that he was prejudiced by

23
counsel’s conduct. Habeas relief is not warranted on this claim.

Petitioner also asserts that trial counsel was ineffective for failing to obtain discovery

and provide it to him prior to sentencing. The Michigan Court of Appeals denied relief on this

claim, explaining:

Cooper also argues that his lawyer was ineffective for failing to

provide him with a complete discovery package; however, he failed

to cite any authority for the proposition that his lawyer had a duty to

do so, failed to meaningfully discuss the evidence concerning the

discovery that his lawyer had, but refused to provide, and failed to

meaningfully discuss how the failure to provide the discovery

prejudiced his trial. Therefore, he has abandoned this claim of error

on appeal. People v. Martin, 271 Mich App 280, 315; 721 NW2d 815

(2006).

Cooper, 2013 WL 2120274, at *4.

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law. This claim is purely conclusory. The record indicates that

trial counsel agreed to provide the petitioner’s family with the discovery materials at the time of

sentencing. See 10/20/10 Sent. Tr. at 3-5. Petitioner fails to allege with any specificity what

discovery materials trial counsel failed to obtain, how any such materials would have benefitted the

defense, or how counsel’s alleged failure to turn over those materials to him affected his trial, his

appeals, or even habeas review. As noted, conclusory allegations do not provide a basis for federal

habeas relief. Habeas relief is not warranted on this claim.

Petitioner next asserts that trial counsel was ineffective for failing to properly crossexamine the eyewitnesses. The Michigan Court of Appeals did not specifically discuss this issue,

but may have found it to be abandoned due to the petitioner’s failure to meaningfully address it on

appeal. Cooper, 2013 WL 2120274, at *5, n.2. The state court’s denial of relief is neither contrary

24
to Supreme Court precedent nor an unreasonable application of federal law. The record indicates

that trial counsel cross-examined those witnesses, challenged their credibility, and pointed out the

variations and inconsistencies in their testimony. See, e.g., 9/29/10 Trial Tr. at 216-36, 290-97;

9/30/10 Trial Tr. at 14-16, 55-64. Counsel’s conduct was reasonable and petitioner fails to show

that it fell outside the wide range of acceptable representation. The petitioner also fails to show that

he was prejudiced by counsel’s conduct. Habeas relief is not warranted on this claim.

Finally, petitioner asserts that he is entitled to habeas relief due to the cumulative

effect of trial counsel’s alleged errors. Such a cumulative error claim is not cognizable on habeas

review. See Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012). Petitioner thus fails to state

a claim upon which relief may be granted as to this issue. Moreover, given that none of his

ineffective assistance of trial counsel claims has merit, petitioner cannot establish that he is entitled

to relief based upon such cumulative error. Habeas relief is not warranted on these claims.

3. Ineffective Assistance of Appellate Counsel Claim

Petitioner next asserts that he is entitled to habeas relief because appellate counsel

was ineffective for failing to raise various claims on direct appeal and to subject his case to

meaningful adversarial testing. Respondent contends that this claim lacks merit.

As discussed above, in order to establish ineffective assistance of counsel, a habeas

petitioner must show that counsel’s performance was deficient and that the deficient performance

prejudiced the defense. A criminal defendant does not have a constitutional right to have appellate

counsel raise every non-frivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745, 751 (1983). 

Further, “[f]or judges to second-guess reasonable professional judgments and impose on appointed

counsel a duty to raise every “colorable” claim suggested by a client would disserve the ... goal of

25
vigorous and effective advocacy. . . . Nothing in the Constitution or our interpretation of that

document requires such a standard.” Id. at 754. Strategic and tactical choices regarding which

issues to pursue on appeal are “properly left to the sound professional judgment of counsel.” United

States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). In fact, “the hallmark of effective appellate

advocacy” is the “process of ‘winnowing out weaker arguments on appeal and focusing on’ those

more likely to prevail.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at

751-52). “Generally, only when ignored issues are clearly stronger than those presented will the

presumption of effective assistance of appellate counsel be overcome.” Monzo v. Edwards, 281 F.3d

568, 579 (6th Cir. 2002). 

Petitioner fails to show that appellate counsel’s performance fell outside the wide

range of professionally competent assistance. Appellate counsel raised substantial claims on direct

appeal, including a great weight of the evidence claim and a jury instruction claim. None of the

other claims subsequently raised by the petitioner on his own should have been raised by counsel,

as evidenced by the Michigan Court of Appeals’ decision denying relief on those claims. Nor has

petitioner shown that appellate counsel failed to subject his case to meaningful adversarial testing. 

Habeas relief is not warranted on this claim.

4. Illegal Search/Ineffective Assistance of Counsel Claims

Petitioner next argues that he is entitled to habeas relief because the search of his

house violated his Fourth Amendment rights. He alleges that the police did not have probable cause

to support the issuance of the warrant and therefore the firearms seized from the house should have

been suppressed. Petitioner also asserts that trial counsel was ineffective for failing to seek

suppression of the seized evidence. Respondent contends that the Fourth Amendment claim is

26
barred by procedural default, not cognizable upon habeas review, and lacks merit, and that the

ineffective assistance claim lacks merit.

Federal courts will not address a Fourth Amendment claim on habeas review if the

petitioner had a full and fair opportunity to litigate the claim in state court and the presentation of

the claim was not thwarted by any failure of the state’s corrective processes. See Stone v. Powell,

428 U.S. 465, 494-95 (1976). A court must perform two distinct inquiries when determining

whether a petitioner may raise a claim of illegal arrest in a habeas action. First, the “court must

determine whether the state procedural mechanism, in the abstract, presents the opportunity to raise

a fourth amendment claim. Second, the court must determine whether presentation of the claim was

in fact frustrated because of a failure of that mechanism.” Machacek v. Hofbauer, 213 F.3d 947, 952

(6th Cir. 2000).

“Michigan has a procedural mechanism which presents an adequate opportunity for

a criminal defendant to raise a Fourth Amendment claim.” Robinson v. Jackson, 366 F. Supp. 2d

524, 527 (E.D. Mich. 2005). This procedural mechanism is a motion to suppress, ordinarily filed

before trial. See People v. Ferguson, 376 Mich. 90, 93-94 (1965). Consequently, petitioner is

entitled to relief on this claim only if he establishes that he was prevented from litigating the Fourth

Amendment issue by a failure of Michigan’s procedural mechanism.

The petitioner has not make the required showing. The record reveals that petitioner raised

the Fourth Amendment issue on direct appeal before the Michigan Court of Appeals and was denied

relief. See Cooper, 2013 WL 2120274, at *5-6. The Michigan Supreme Court then denied leave

to appeal. Consequently, it is clear that the Michigan courts were cognizant of petitioner’s Fourth

Amendment claim and that he received all of the process he was due. The petitioner’s Fourth

27
Amendment claim is therefore not cognizable on habeas review pursuant. Further, given that the

Michigan Court of Appeals denied relief on the merits of the Fourth Amendment claim, petitioner

cannot establish that trial counsel erred or that he was prejudiced by counsel’s conduct in not

challenging the search of his house or seeking suppression of the seized gun evidence. Habeas relief

is not warranted on this claim.

5. Prosecutorial Misconduct Claims

Finally, petitioner asserts that he is entitled to habeas relief because the prosecutor

engaged in misconduct by commenting on prior bad acts and making statements unsupported by the

evidence during closing arguments. Respondent contends that these claims are barred by procedural

default and lack merit.

Prosecutors must “refrain from improper methods calculated to produce a wrongful

conviction.” Berger v. United States, 295 U.S. 78, 88 (1935). To prevail on a prosecutorial

misconduct claim, a habeas petitioner must show that the prosecutor’s conduct or remarks “so

infected the trial with unfairness as to make the resulting conviction a denial of due process.” 

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

The Michigan Court of Appeals denied relief on these claims, explaining:

Next, Cooper argues that the prosecutor committed misconduct by

improperly referring to Cooper's prior bad acts. Because Cooper's

trial lawyer did not object to the prosecutor's remarks, we shall

review this claim for plain error. People v. Bennett, 290 Mich App

465, 475; 802 NW2d 627 (2010). This Court reviews a claim of

prosecutorial misconduct de novo to determine whether the defendant

was denied a fair and impartial trial. Id. 

Cooper asserts that the prosecutor improperly referred to prior bad

acts, but he does not cite any particular remark or otherwise discuss

the allegedly improperly comments. Therefore, he has abandoned this

claim of error. Martin, 271 Mich App at 315. In any event, our

28
review of the record has revealed no indication that the prosecutor

improperly referred to any prior bad acts. 

He also argues that the prosecutor committed misconduct during

closing argument by referring to a fact that was not in evidence;

namely, that Cooper was in his house watching Latham talk to Beard.

“A prosecutor may not make a statement of fact to the jury that is

unsupported by evidence, but she is free to argue the evidence and

any reasonable inferences that may arise from the evidence.” People

v. Ackerman, 257 Mich App 434, 450; 669 NW2d 818 (2003). Here,

Cooper faults the prosecutor for stating that Cooper was likely at

home watching Latham and Beard:

Now, notice that the lights are off when the ladies

arrive. Well, it's easier to see what's going on outside

your house when the lights are off. And you know

he's sitting there watching [Latham] talking to Ronald

Beard again. And imagine how disrespected he's

feeling now because [Latham] is on his street, at his

house, talking to her other boyfriend again.

The prosecutor's statement was supported by a reasonable inference

from the evidence. Testimony established that Cooper had been seen

running toward his house following the earlier confrontation and that

the house was dark when the women arrived outside. The testimony

also established that he had earlier stated that he felt disrespected by

Beard's actions toward Latham and that it was shortly after Latham

stopped to talk with Beard that Cooper came running from his house

with a long gun that he did not have in the earlier confrontation. The

prosecutor could reasonably argue that this evidence supported the

conclusion that Cooper was in the house and watching Latham and

Beard. Ackerman, 257 Mich App at 450.

Cooper, 2013 WL 2120274, at *7.

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law. First, the court’s review of the record, including closing

arguments, does not support petitioner’s assertion that the prosecutor improperly commented on

prior bad acts or attempted to convince the jury to convict him based upon his character rather than

the evidence presented at trial. Second, the prosecutor’s comment that petitioner was in his house

29
watching Latham talk to Beard was a rational inference from the trial testimony. While prosecutors

may not misstate the evidence, United States v. Carter, 236 F.3d 777, 784 (6th Cir. 2001), or argue

facts not in evidence, Abela v. Martin, 380 F.3d 915, 929 (6th Cir. 2004), they have “‘leeway to

argue reasonable inferences from the evidence’ during closing arguments.” United States v.

Crosgrove, 637 F.3d 646, 664 (6th Cir. 2011) (quoting Byrd v. Collins, 209 F.3d 486, 535 (6th Cir.

2000)).

Moreover, even if the prosecutor erred, petitioner was not denied a fair trial. The trial

court properly instructed the jury about the elements of the offenses, the presumption of innocence,

the burden of proof, and the proper consideration of the evidence. The court also explained that the

attorneys’ arguments are not evidence and that if a party said something contrary to the court’s

instructions the jury must follow the instructions. See 10/4/10 Trial Tr. at 39-58. Petitioner fails

to show that the prosecutor’s arguments were improper or that they rendered his trial fundamentally

unfair. Habeas relief is not warranted on these claims.

V. Conclusion

For the reasons stated above, the court concludes that petitioner is not entitled to

federal habeas relief on his claims. Accordingly, 

IT IS ORDERED that petitioner’s application for a writ of habeas corpus is denied.

IT IS FURTHER ORDERED that no certificate of appealability shall issue, as

petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). 

30
IT IS FURTHER ORDERED that petitioner may not proceed on appeal in forma

pauperis because any appeal in this matter would be frivolous.

S/ Bernard A. Friedman______

BERNARD A. FRIEDMAN

SENIOR UNITED STATES DISTRICT JUDGE

Dated: May 30, 2017

Detroit, Michigan

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