UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LEONARD CARTER,

 

Petitioner, Case No. 2:14-cv-12787

 Honorable Patrick J. Duggan

v.

DUNCAN MACLAREN,

Respondent.

_________________________________/

OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF

HABEAS CORPUS, (2) DECLINING TO ISSUE A CERTIFICATE OF

APPEALABILITY, AND (3) DENYING PETITIONER’S MOTION FOR

EVIDENTIARY HEARING

Petitioner Leonard Carter (“Petitioner”), a Michigan Department of Corrections

prisoner currently confined at the Kinross Correctional Facility in Kincheloe,

Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on

July 14, 2014, and amended the petition on July 28, 2014. In his pro se application,

which is presently before the Court, Petitioner challenges his state-court convictions,

secured after a jury trial in the Oakland County Circuit Court, on two counts of firstdegree murder, in violation of Michigan Compiled Laws § 750.316 on the following

grounds: (1) Petitioner was denied the effective assistance of counsel because his trial

attorney failed to cross-examine a prosecution witness with a prior inconsistent

statement; (2) the trial court erroneously permitted the jury to ask an expert witness

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a question that impermissibly shifted the burden of proof from the prosecution to the

defense; (3) trial counsel was ineffective for failing to object to a warrantless search;

(4) the prosecutor committed misconduct during closing arguments; (5) defense

counsel rendered constitutionally-inadequate assistance by failing to present a

reasonable defense theory; and (6) appellate counsel was ineffective for failing to raise

meritorious claims on direct appeal. 

Having thoroughly reviewed the claims asserted in the habeas application, the

accompanying briefs, and the Rule 5 materials,1

 the Court concludes that Petitioner

is not entitled to the issuance of the writ. Specifically, the state court adjudication of

Petitioner’s first two claims did not violate, or involve an unreasonable application of,

clearly established law as established by the Supreme Court of the United States. The

four remaining claims are barred by the doctrine of procedural default, as Petitioner

has failed to demonstrate cause to excuse the default, or that a fundamental

miscarriage of justice would result from a failure to review these claims. The Court

will therefore deny the petition and will further decline to issue a certificate of

appealability. The Court will similarly deny Petitioner’s motion for an evidentiary

1

 Rule 5 of the Rules Governing Section 2254 Cases in the United States

District Courts, 28 U.S.C. foll. § 2254, specifically subdivisions (c) and (d), set

forth the respondent’s obligation to submit state court materials related to the

conviction and appeal challenged in a § 2254 proceeding.

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hearing. 

I. FACTUAL AND PROCEDURAL BACKGROUND

The Court recites verbatim the facts relied upon by the Michigan Court of

Appeals in assessing Petitioner’s insufficiency of the evidence challenge on direct

appeal, as these facts are entitled to a presumption of correctness on habeas review

pursuant to 28 U.S.C. § 2254(e)(1). Wagner v. Smith, 581 F.3d 410, 413 (6th Cir.

2009); see also Treesh v. Bagley, 612 F.3d 424, 431 n.1 (6th Cir. 2010) (noting that

the presumption of correctness extends to factual findings made by state appellate

courts) (citation omitted). 

Ray and defendant were brothers and Tony was their uncle; and, the

three were all housemates. Pamela Carter, defendant’s estranged wife,

testified that flooding problems in the basement of the home where the

men lived were causing stress. In fact, defendant indicated to Carter and

Brenda Lee Boothe, his coworker and ex-girlfriend, that he was upset

that Tony and Ray were not paying the bills or helping out around the

house. Boothe also testified that she had a telephone conversation with

defendant on January 15, 2007, two days before the murders, wherein he

stated that he was “pissed off,” and, referring to Tony and Ray, further

stated (as he appears to concede on appeal), “I’m about to f*** them two

up [sic].” Veda James, defendant’s girlfriend at the time of the murders,

similarly stated that defendant indicated that he did not like living with

Ray and Tony because they were lazy, and that was especially true with

respect to Tony.

. . . [T]estimony showed that the victims had been wearing casual

clothing or sleepwear when they were killed. That evidence suggested

that the victims were either sleeping or relaxing at the time of the

murder, and thus, caught off guard. Furthermore, there were no signs of

forced entry into the home, or other disturbance, which could indicate

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that the victims knew their killer.

Dr. Bernardino Pacris, the Deputy Medical Examiner, testified that the

cause of both victims’ deaths was multiple stab wounds and the manner

of death homicide. In fact, one victim received 45 separate wounds,

including 14 to the head and neck area. The wounds that inflicted the

most damage included one on the left side of the chest that perforated the

lung and two on the left side of the neck that nicked the jugular vein and

carotid artery. The victim also had wounds on his hands that the doctor

characterized as defensive injuries. The other victim’s body received ten

stab wounds, three on the right side of the head and neck and two in the

right subclavian area, three stab wounds on the back and

one stab wound in the abdomen. According to the doctor, the “most

devastating injury” was the one in Ray’s left chest, which cut the

thoracic aorta. The high number of wounds and their placement in vital

areas further indicate that the murderer had the intent to kill and time to

deliberate, as he inflicted multiple wounds into two different victims.

Furthermore, not only did defendant live in the house with the victims,

but DNA evidence tied defendant to the murder scene. Vitta, the DNA

analyst, agreed that, of all the blood that she analyzed from the house,

she did not find anyone else’s DNA type other than defendant and the

two victims. More specifically, DNA from the band-aid, the bathroom

sink, and the kitchen floor matched defendant, while the victims were

excluded. The blood on the knife handle that was recovered from the

garbage can contained DNA from defendant (the major donor) and,

although she could determine that there were other contributors, there

was not enough material to determine a match. The blood on the knife

blade matched two people, one being Ray, but the other contributor,

again, could not be determined. However, “all of the DNA types that

were detected were consistent” with defendant, Tony and Ray. The

cutting of blood from the left leg of the gray dress pants, which belonged

to defendant, had DNA from Ray.

Finally, regarding defendant’s actions after the murders, testimony

indicated that, after staying in Detroit for a few days where he spent

money on crack and a prostitute, defendant ended up in Syracuse on

February 1, 2007, where he remained until he was apprehended by

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Syracuse police on June 4, 2007. During this time, defendant did not

show up for his job, failed to contact Carter, Boothe, James, or

Jacqueline Mosely (his mother), and missed Tony’s and Ray’s funerals,

despite indicating to Detective Randy Collins, of the Syracuse Police

Department, that he knew that Tony and Ray had been killed.

* * *

Testimony indicated that Ray owned a white Ford Crown Victoria,

which defendant sold to Jones for $500 on January 18, 2007. In addition,

Tony’s last known banking transaction was on January 17, 2007, when

he cashed a check for $600. Tony also won a bingo jackpot of $500 on

the evening of January 17, 2007. When police discovered Tony’s body,

the pockets of his sweatpants had been turned inside out. According to

Jones, he sold defendant crack cocaine, and defendant paid for it with

bloody $100 bills. Jones was not entirely sure of the total amount of their

multiple drug transactions, but he estimated that it was around $1,000. 

People v. Carter, No. 290493, 2010 WL 1979442, at *4-6 (Mich. Ct. App. May 18,

2010) (unpublished) (per curiam).

After hearing this evidence at trial, a jury found Petitioner guilty of four counts

of murder - two counts of first-degree murder and two counts of felony murder. 

Petitioner was later sentenced to mandatory life imprisonment without the possibility

of parole on each of the four murder charges. Petitioner subsequently filed a claim of

appeal in the Michigan Court of Appeals, raising the following claims in a brief filed

by counsel and a supplemental pro se brief:

I. Trial counsel rendered ineffective assistance of counsel when he

acquiesced to the admission of highly prejudicial photographs that

deprived Petitioner of his right to fair trial.

II. Trial counsel deprived Petitioner of his constitutional right to the

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effective assistance of counsel by failing to impeach a key witness with

his prior inconsistent statements.

III. The trial court violated Petitioner due process right to a fair trial by

an impartial jury when it allowed the jury to ask a question that shifted

the burden of proof to the defense.

IV. Since there are only two victims, two of Petitioner four convictions

and sentences violate double jeopardy and must be vacated.

V. There is insufficient evidence to sustain Petitioner convictions for

premeditated murder.

VI. There is insufficient evidence to sustain Petitioner convictions for

felony murder.

VII. The police violated Petitioner Fourth Amendment rights by

searching the scene without a warrant.

In an unpublished, per curiam opinion, the Michigan Court of Appeals rejected

most of Petitioner’s arguments, concluding that there was sufficient evidence to

sustain the murder convictions. The appellate court did, however, agree with

Petitioner that double jeopardy principles precluded his being convicted of four

murder charges involving two victims. Thus, the court remanded the case to amend

the judgment to read that he is guilty of two counts first-degree murder, each

supported by two theories: premeditated murder and felony murder. Carter, No.

290493, 2010 WL 1979442, at *1, 7. 

Petitioner filed an application for leave to appeal in the Michigan Supreme

Court. The application raised the first three claims that he raised in the Michigan

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Court of Appeals through counsel, and added a claim that Petitioner’s Fourth

Amendment rights were violated as well as a claim that counsel was ineffective for

failing to make a particular Fourth Amendment argument at a pre-trial suppression

hearing. The Michigan Supreme Court denied the application because it was not

persuaded that the questions presented warranted review. People v. Carter, 488 Mich.

913, 789 N.W.2d 467 (2010). Petitioner then filed a petition for writ of certiorari in

the Supreme Court, which was denied. Carter v. Michigan, 131 S. Ct. 1793 (2011).

On August 17, 2011, having exhausted his direct review appellate rights,

Petitioner filed a motion for relief from judgment in the state trial court, raising the

following claims:

I. Trial counsel was ineffective for:

(1) failing to investigate and effectively cross-examine the

drug-dealer/prostitute/hotel manager witnesses; 

(2) failing to investigate a possible murder eyewitness or

perpetrator;

(3) failing to present a reasonable defense theory;

(4) failing to object to a juror’s burden-shifting question;

(5) failing to object to admission of evidence obtained via

a warrantless entry into the backyard and a warrantless

initial home entry;

(6) failing to request a curative instruction for the

prosecutor’s prejudicial remarks; and

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(7) failing to object to the erroneous jury instructions.

II. The trial court erred in admitting evidence obtained during the

warrantless search of Petitioner’s house.

III. The prosecutor committed misconduct that denied defendant a fair

trial by:

(1) vouching for the credibility of the drug-dealer/prostitute

witnesses and falsely stating that these witnesses had

nothing to gain by lying;

(2) falsely stating that the drug dealer’s story had never

changed; and

(3) shifting the burden of proof.

IV. The trial court’s instructions on intent, premeditation, and

deliberation violated the Fifth Amendment.

V. Appellate counsel was ineffective for failing to raise the issues set

forth above.

On October 17, 2011, the trial court denied Petitioner’s motion for relief from

judgment pursuant to Michigan Court Rule 6.508(D)(3), finding that review of

Petitioner’s new claims was barred by his failure to show “good cause” for failing to

raise them on direct appeal or “actual prejudice.” The trial court also noted that some

of the issues had already been rejected during Petitioner’s direct appeal and that others

lacked merit. 

Petitioner then filed an application for leave to appeal in the Michigan Court of

Appeals, narrowing his claims as follows:

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I. (A) Trial counsel was ineffective for failing to object to the admission

of evidence obtained via warrantless entry into to Petitioner’s backyard.

(B ) The trial court erred in ruling that this issue had been raised and

rejected by the Michigan Court of Appeals.

II. The prosecutor committed misconduct that denied Petitioner a fair

trial by falsely stating to the jury that the prosecution’s witnesses’ stories

had never changed.

III. Counsel was ineffective for failing to present a reasonable defense

theory.

IV. Appellate counsel was ineffective for failing to raise the claims set

forth above.

The Michigan Court of Appeals denied the application for leave to appeal for failure

to establish entitlement to relief under Michigan Court Rule 6.508(D). People v.

Carter, No. 312453 (Mich. Ct. App. July 19, 2013).

Petitioner then applied for leave to appeal this decision in the Michigan

Supreme Court, raising the same claims that he raised in the Michigan Court of

Appeals. The court denied the application under Rule 6.508(D). People v. Carter,

495 Mich. 946, 843 N.W.2d 503 (2014).

On July 14, 2014, Petitioner filed the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On July 25, 2014, United States

Magistrate Judge R. Steven Whalen issued an Order requiring Respondent Duncan

MacLaren (“Respondent”) to file a response to the petition. (ECF No. 3.) A few days

later, on July 28, 2014, Petitioner filed a motion to strike and amend the third claim

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in his habeas petition, which this Court granted in an Order dated November 3, 2014. 

(ECF Nos. 5, 6.) 

Petitioner’s habeas application raises the following six claims: (1) Petitioner

was denied the effective assistance of counsel because his trial attorney failed to crossexamine a prosecution witness with a prior inconsistent statement; (2) the trial court

permitted the jury to ask an expert witness a question that impermissibly shifted the

burden of proof from the prosecution to the defense; (3) trial counsel rendered

ineffective assistance by failing to object to a warrantless search; (4) the prosecutor

committed misconduct during closing arguments; (5) defense counsel rendered

constitutionally-inadequate assistance by failing to present a reasonable defense

theory; and (6) appellate counsel was ineffective for failing to raise meritorious claims

on direct appeal. Respondent filed a response the petition along with the pertinent

Rule 5 materials on January 22, 2015, and, on March 9, 2015, Petitioner filed a reply. 

(ECF Nos. 7-9.) On March 26, 2015, Petitioner filed a motion asking this Court to

hold an evidentiary hearing to establish a factual basis for his federal constitutional

claims. (ECF No. 10.)

II. STANDARD OF REVIEW

Review of this case is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Pub. L. No. 104-132, 110 Stat. 1214. In order to

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grant relief, this Court must conclude that the state court’s decision “with respect to

any claim that was adjudicated on the merits in State court proceedings” was (1)

“contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States[]” or (2) “based on an

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

court proceeding.” 28 U.S.C. § 2254(d).

The Supreme Court has expounded upon the meanings of the two clauses

contained in 28 U.S.C. § 2254(d)(1). Williams v. Taylor, 529 U.S. 362, 405, 120 S.

Ct. 1495, 1519 (2000) (O’Connor, J., opinion of the Court for Part II) (“[T]he

‘contrary to’ and ‘unreasonable application’ clauses [have] independent meaning.”). 

“A state-court decision is contrary to clearly established federal law if the state court

applies a rule that contradicts the governing law set forth in [the Supreme Court’s]

cases or if the state court 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.” Murphy v. Ohio, 551 F.3d 485, 493-94 (6th Cir. 2009)

(alterations in original) (internal quotation marks omitted) (quoting Williams, 529 U.S.

at 405, 120 S. Ct. at 1519). 

Alternatively, “[i]f the state court identifies the correct governing legal principle

. . . , habeas relief is available under the unreasonable application clause if the state

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court unreasonably applies that principle to the facts of the prisoner’s case or

unreasonably extends or unreasonably refuses to extend a legal principle from the

Supreme Court precedent to a new context.” Akins v. Easterling, 648 F.3d 380, 385

(6th Cir. 2011) (internal quotation marks and alterations omitted). A federal court

may not find a state court’s application of Supreme Court precedent unreasonable if

it is merely “incorrect or erroneous. [Rather, t]he state court’s application must have

been ‘objectively unreasonable.’” See, e.g., Wiggins v. Smith, 539 U.S. 510, 520-21,

123 S. Ct. 2527, 2535 (2003) (citations omitted).

“[A] federal habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at 411,

120 S. Ct. at 1522. “Rather, it is the habeas applicant’s burden to show that the state

court applied [Supreme Court precedent] to the facts of his case in an objectively

unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25, 123 S. Ct. 357, 360

(2002).

Factual determinations made by state court judges in the adjudication of claims

cognizable on habeas review are accorded a presumption of correctness. 28 U.S.C.

§ 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and

convincing evidence. Id. Moreover, habeas review of claims adjudicated on the

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merits is “limited to the record that was before the state court.” Cullen v. Pinholster,

563 U.S. 170, 131 S. Ct. 1388, 1398 (2011).

As the authority cited above makes clear, AEDPA“imposes a ‘highly deferential

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

be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773, 130 S. Ct.

1855, 1862 (2010) (citing cases); see also Nields v. Bradshaw, 482 F.3d 442, 449 (6th

Cir. 2007). 

III. ANALYSIS

A. Ineffective Assistance of Counsel

In his first claim for relief, Petitioner asserts that his trial counssel was

ineffective for failing to impeach Robert Jones, a drug dealer and key prosecution

witness, with a prior inconsistent statement during cross-examination. According to

Petitioner, Jones testified that he saw Petitioner in possession of blood-soaked money

after the murders took place. This testimony, however, was inconsistent with a

statement Jones made to law enforcement officials during the course of their

investigation. In his initial statement to police officers, Jones indicated that somebody

else received the bloody money from Petitioner. Petitioner contends that his trial

counsel should have impeached Jones with these inconsistent statements in order to

undermine Jones’s credibility with the jury, and that counsel’s failure to do so

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constituted ineffective assistance of counsel.

The Michigan Court of Appeals rejected this claim, reasoning as follows:

“The questioning of witnesses is presumed to be a matter of trial

strategy,” People v Petri, 279 Mich App 407, 413; 760 NW2d 882

(2008), which this Court “will not second-guess with the benefit of

hindsight.” People v. Dixon, 263 Mich App 393, 398; 668 NW2d 308

(2004). Whether to impeach Jones on this issue was a tactical decision

that we will not second-guess on appeal. And, even if the failure to

impeach was error, as argued by the prosecutor, had defense counsel

impeached Jones, it would not have been a stretch for the jury to believe

that Jones, in an effort to avoid admitted that he obtained the money

when he sold crack to defendant, initially told police that someone else

first obtained the blood-stained money from defendant. Further, the fact

still remains that LaDonna Johnson, the woman who accompanied

defendant to the LaRenaissance Motel in Detroit, Anelo Josevski, the

motel manager, and Kleva Mix, Jones’s girlfriend, all testified that they

saw defendant with the bloodstained money. Therefore, defendant

cannot show that Jones’s testimony was prejudicial, and thus cannot

show that he received ineffective assistance of counsel.

Carter, No. 290493, 2010 WL 1979442, at * 2. The Court is unable to conclude that

this decision is either contrary to federal law (because the Michigan Court of Appeals

applied the correct ineffective-assistance standard) or involved an objectively

unreasonable application of the law governing ineffective assistance of counsel

claims.

1. Governing Law

The Sixth Amendment to the United States Constitution guarantees criminal

defendants “the right to the effective assistance of counsel[,]” Strickland v.

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Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984) (citation and internal

quotation marks omitted), not the flawless assistance of counsel, Smith v. Mitchell,

348 F.3d 177, 206 (6th Cir. 2003) (“After all, the constitutional right at issue here is

ultimately the right to a fair trial, not to perfect representation.”). To show that he was

denied the effective assistance of counsel under federal constitutional standards,

Petitioner must satisfy Strickland’s two-prong test:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so serious

that counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant must show

that the deficient performance prejudiced the defense. This requires

showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct at 2064.

When confronted with a case containing the procedural posture presented here

– a federal district court reviewing an ineffective assistance of counsel claim

adjudicated on the merits and denied by a state court by way of federal habeas review

– courts must not conflate the “highly deferential” standards independently created by

Strickland and § 2254(d). Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770,

788 (2011); id. at 101, 131 S. Ct. at 785 (“The pivotal question is whether the state

court’s application of the Strickland standard was unreasonable. This is different from

asking whether defense counsel’s performance fell below Strickland’s standard.”). 

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Instead, “when the two [standards] apply in tandem,” a federal district court must

apply a “doubly” deferential standard. Id. at 105, 131 S. Ct. at 788 (citation omitted). 

Thus, the Court’s task today is not to consider ab initio whether Petitioner’s counsel

satisfied the requirements of Strickland; rather, the Court must decide whether the

state court’s Strickland determination was “contrary to, or involved an unreasonable

application of, clearly established Federal law[.]” 28 U.S.C. § 2254(d)(1).

2. Application 

Petitioner insists that his trial counsel performed deficiently by failing to

impeach Jones with his prior inconsistent statement regarding who saw Petitioner with

the blood-stained currency. Because ineffective assistance is equated with

“representation f[alling] below an objective standard of reasonableness[,]” “[i]n any

ineffectiveness case, a particular decision to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to

counsel’s judgments.” Strickland, 466 U.S. at 688, 691, 104 S. Ct. at 2064, 2066. In

analyzing a petitioner’s claim of ineffective assistance, courts employ a “strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689, 104 S. Ct. at 2065. This presumption is

particularly potent when evaluating counsel’s strategic or tactical decisions regarding

case presentation. 

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Of particular relevance to the issue asserted by Petitioner, “[d]efense counsel’s

decisions regarding cross-examination are matters of trial strategy, which are entitled

to ‘great respect’ by this Court.” Anderson v. Berghuis, No. 1:10-cv-349, 2015 U.S.

Dist. LEXIS 16432, at *37-38 (W.D. Mich. Feb. 11, 2015) (Bell, J.) (quoting Glenn

v. Sowders, 811 F.3d 605 (table), 1986 WL 18475, at *4 (6th Cir. 1986)); see also

Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir. 1997) (“Courts generally entrust

cross-examination techniques, like other matters of trial strategy, to the professional

discretion of counsel.”); Dell v. Straub, 194 F. Supp. 2d 629, 651 (E.D. Mich. 2002);

Johnson v. Hofbauer, 159 F. Supp. 2d 582, 607-08 (E.D. Mich. 2001) (“Impeachment

strategy is a matter of trial tactics, and tactical decisions are not ineffective assistance

of counsel simply because in retrospect better tactics may have been available.”). This

is precisely the basis on which the Michigan Court of Appeals rejected Petitioner’s

claim on direct review. Because the state appellate court applied the correct standard

and did so in a manner consistent with federal legal principles, Petitioner’s claim of

error cannot be sustained.

Even if counsel had impeached Jones on whether he received the blood-soaked

money directly from Petitioner or through an intermediary, Jones, a drug dealer, might

have initially told law enforcement officials that he did not interact directly with

Petitioner in an effort to distance himself from the killings. That is, it would have

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been a simple matter for Jones to explain the inconsistent statement on redirect. A

reasonable defense attorney might decide to forgo any minor impeachment value the

prior statement would have provided, particularly in light of the fact that several other

witnesses testified that they saw Petitioner in possession of the bloody money. 

(1/13/09 Trial Tr. 18 (testimony of LaDonna Johnson); id. at 161-62 (testimony of

Anelo Josevski); id. at 146 (testimony of Kleva Mix).) Put differently, Jones’s

testimony on this subject was cumulative to that of several other witnesses, and his

prior inconsistent statement, therefore, was of little impeachment value. Further,

because several other witnesses testified that they saw Petitioner in possession of the

bloodied currency, counsel’s failure to impeach Jones cannot be said to have resulted

in any prejudice to Petitioner.

The Court concludes that the opinion of the state appellate court on Petitioner’s

first claim was neither contrary to, nor involved an unreasonable application of,

clearly-established Supreme Court precedent. Accordingly, habeas relief is not

warranted on this claim. 

B. Jurors’ Question

In his second claim, Petitioner contends that the trial court violated his due

process right to a fair trial when it allowed the jury to ask a question of an expert

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witness that had the effect of improperly shifting the burden of proof.2

 Petitioner

raised this claim on direct appeal but the Michigan Court of Appeals rejected it,

explaining as follows:

Defendant next argues that the trial court violated his right to a fair trial

by impermissibly shifting the burden of proof. This issue ar[ose] when,

following the attorney’s questioning of Heather Vitta, a forensic scientist

at the Michigan State Police Crime Lab in Northville, the jury indicated

that it had an additional question. The judge had both attorneys

approach the bench, and then stated, “I have a question which counsel

and the court agree is appropriate, and I will ask the question.”3

 Thus,

this issue has been waived on appeal. See People v Carter, 462 Mich

206, 215; 612 NW2d 114 (2000) (“Waiver has been defined as the

intentional relinquishment or abandonment of a known right. . . . One

2

 At the time of Petitioner’s trial in 2009, Michigan Court Rule 6.414(E)

expressly permitted state-court trial judges to exercise their discretion on the

subject of whether to allow jurors to ask questions. The rule provided that if a

court permitted such inquiries, that “it must employ a procedure that ensures that

inappropriate questions are not asked, and that the parties have the opportunity to

object to the questions.” MCR 6.414(E) (2009). Although this rule was repealed

in 2011, the trial judge in this case appears to have followed the guidance set forth

in the rule, as Respondent explains that jurors were permitted to submit written

questions after attorneys had concluded their questioning of a witness, and that the

attorneys would then approach the bench to discuss the proposed question with the

judge to determine whether it was appropriate. (Resp’t’s Br. 53.)

3

 The Michigan Court of Appeals noted:

The question was, “can the defense request samples to be examined?” 

Vitta answered, “Yes. The defense could request that samples be

examined through the prosecution.” The prosecution then asked, “was

that done in this case?” and defense counsel answered, “no.”

Carter, No. 290493, 2010 WL 1979442, at *3 n.1.

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who waives his rights under a rule may not then seek appellate review of

a claimed deprivation of those rights, for his waiver has extinguished any

error.”). 

Carter, No. 290493, 2010 WL 1979442, at *3. As with the previous claim, this Court

is unable to conclude that the state court applied a rule contrary to clearly-established

Supreme Court precedent or that it unreasonably applied governing precedent in

rejecting Petitioner’s claim of error.

The Michigan Court of Appeals’s decision rested on the legal principle of

waiver; that is, that Petitioner’s counsel’s acquiescence to the juror’s question was an

intentional relinquishment of a right that Petitioner may not raise again later. “One

who waives his rights under a rule may not then seek appellate review of a claimed

deprivation of those rights, for his waiver has extinguished any error.” United States

v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996) (citing United States v. Olano, 507 U.S.

725, 113 S. Ct. 1770 (1993)). Extinguishment of error through waiver was clearlyestablished federal law at the time of Petitioner’s trial and appeal. 

Further, although federal courts discourage questions by jurors in federal

criminal trials, see, e.g., United States v. Collins, 226 F.3d 457, 461-62 (6th Cir.

2000), there is no caselaw of which this Court is aware that holds that questions by

jurors implicate a specific constitutional guarantee. Wheeler v. Jones, 59 F. App’x 23,

30 (6th Cir. 2003) (unpublished) (rejecting habeas petitioner’s claim of error on this

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basis). Because this action is governed by AEDPA, the lack of clearly-established

Supreme Court precedent holding that such un-objected to questioning was

impermissible forecloses Petitioner’s claim for relief. Carey v. Musladin, 549 U.S.

70, 127 S. Ct. 649 (2006). 

The best Petitioner can do is to suggest that his right to be proven guilty beyond

a reasonable doubt was somehow implicated by the question because it suggested that

the defense was required to defend the state’s testing by asking for some testing of its

own. This novel theory cannot be supported by existing law, and this Court may not

manufacture a new due-process right for the first time on habeas corpus review. 

Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012); Premo v. Moore, 562 U.S. 115,

127, 131 S. Ct. 733, 743 (2011). In the absence of a controlling holding of the

Supreme Court, this Court may not grant relief on Petitioner’s due-process claim. 

Premo, 562 U.S. at 127, 131 S. Ct. at 743 (novelty alone is a reason to reject a habeas

claim).4

C. Procedural Default

Respondent contends that review of Petitioner’s four remaining claims is barred

4

 The Court notes that to the extent that Petitioner is attempting to argue that

his trial counsel was ineffective for waiving any objection to the jury’s question,

this claim has not been fairly-presented through one full round in the state courts

and has been procedurally defaulted because Petitioner has no avenues to return to

the state courts to properly exhaust the claim.

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by the doctrine of procedural default.5

 Pursuant to this doctrine, “a federal court will

not review the merits of claims, including constitutional claims, that a state court

declined to hear because the prisoner failed to abide by a state procedural rule.” 

Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309, 1316 (2012). The four remaining

claims set forth in Petitioner’s habeas application were not presented to the state

courts during his direct appeal. Rather, he presented them in his motion for relief

from judgment and the appeal that followed its denial. These claims are procedurallybarred because Petitioner did not demonstrate adequate cause or prejudice under

Michigan Court Rule 6.508(D)(3) for failing to raise the claims on direct review.

1. Governing Legal Principles 

Procedural default relates to the exhaustion requirement, which provides that

“[a] federal court will not address a habeas petitioner’s federal constitutional claim

unless the petitioner has first fairly presented the claim to the state courts.” Deitz v.

Money, 391 F.3d 804, 808 (6th Cir. 2004). In other words, state prisoners are required

to exhaust their claims in the state courts before filing a petition for a writ of habeas

corpus under 28 U.S.C. §2254. O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct.

5

 These four claims are: (1) trial counsel rendered ineffective assistance by

failing to object to a warrantless search; (2) the prosecutor committed misconduct

during closing arguments; (3) defense counsel rendered constitutionally-inadequate

assistance by failing to present a reasonable defense theory; and (4) appellate

counsel was ineffective for failing to raise meritorious claims on direct appeal. 

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1728, 1732 (1999) (“[S]tate prisoners must give the state courts one full fair

opportunity to resolve any constitutional issues by invoking one complete round of

the State’s established appellate review process[.]”); Rust v. Zent, 17 F.3d 155, 160

(6th Cir. 1994). In order to properly exhaust a claim in the State of Michigan, a

habeas petitioner must present the claim to the Michigan Court of Appeals and the

Michigan Supreme Court. Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). 

When a habeas petitioner fails to present his claims to the state courts, the ordinary

procedure is for the petition to be held in abeyance so that the petitioner may return

to the state courts and exhaust his or her appellate remedies. Rose v. Lundy, 455 U.S.

509, 515-16, 102 S. Ct. 1198, 1201-02 (1982). However, this procedure requires that

an opportunity to litigate the claim in the state courts remains available. Such an

opportunity does not exist in the present case.

When a habeas petitioner fails to present his or her claims to the state courts and

a state procedural rule precludes the petitioner from pursuing any further judicial

review, the petitioner’s claims are said to have been procedurally defaulted. In such

cases, the petitioner has procedurally defaulted those claims for purposes of federal

habeas review because he or she has not, and indeed cannot, satisfy the exhaustion

requirement. Pudelski v. Wilson, 576 F.3d 595, 605 (6th Cir. 2009) (citing Martin v.

Mitchell, 280 F.3d 594, 603 (6th Cir. 2002)). Put differently, “[a] federal court is []

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barred from hearing issues that could have been raised in the state courts, but were

not, and now may not be presented to the state courts due to a procedural defect or

waiver.” Deitz, 391 F.3d at 808. 

Federal courts apply a three-part test to determine if a state prisoner has

procedurally defaulted his federal claims in state court. Willis v. Smith, 351 F.3d 741,

744 (6th Cir. 2003). First, there must be a firmly established, state procedural rule

which is applicable to the petitioner’s claim and the petitioner must not have complied

with the rule. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S. Ct. 850, 857-58 (1991). 

Second, it must fairly appear that the last state court to which the petitioner sought

review relied on the procedural rule as a basis for its decision to refuse to review his

or her federal claims. Coleman v. Thompson, 501 U.S. 722, 740, 111 S. Ct. 2546,

2560 (1991). Third, the procedural default must be an “adequate and independent”

state ground on which the state can rely to foreclose review of a federal claim. Cnty.

Court of Ulster Cnty. v. Allen, 442 U.S. 140, 148, 99 S. Ct. 2213, 2220 (1979). If

those three prerequisites are met, then the petitioner has procedurally defaulted his or

her federal claims in state court, which precludes federal habeas review unless the

petitioner shows “that there was cause for the default and prejudice resulting from the

default, or that a miscarriage of justice will result from enforcing the procedural

default in the petitioner’s case.” Seymour v. Walker, 224 F.3d 542, 550 (6th Cir.

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2000) (citing Wainwright v. Sykes, 433 U.S. 72, 87, 90-91, 97 S. Ct. 2497 (1977));

Deitz, 391 F.3d at 808 (“In order to gain access to a habeas review of a [claim not

adjudicated on the merits due to a state procedural rule], a petitioner must demonstrate

either (1) cause to excuse the waiver and prejudice to his defense or (2) actual

innocence.”) (citing Murray v. Carrier, 477 U.S. 478, 485-92, 106 S. Ct. 2639, 2643-

47 (1986)). One circumstance constituting cause to excuse such a default is when the

procedural default was the result of ineffective assistance of counsel. Murray, 477

U.S. at 488, 106 S. Ct. at 2645. 

2. Application

Applying the procedural-default test articulated above, the Court must first

determine whether there is an established state procedural rule applicable to

Petitioner’s claims that he failed to comply with. The Court determines that there is. 

Michigan Court Rule 6.508(D)(3) provides that a court may not grant relief to a

defendant if the motion for relief from judgment alleges grounds for relief which

could have been raised on direct appeal, absent a showing of good cause for the failure

to raise such grounds previously and actual prejudice resulting therefrom.

Analysis of the second factor - that being that the last state court from which

Petitioner sought review relied on the procedural rule as a basis for its decision to

review his claims - fares no better despite being slightly more involved by virtue of

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the rule that “a procedural default does not bar consideration of a federal claim on

either direct or habeas review unless the last state court rendering a judgment in the

case ‘clearly and expressly’ states that its judgment rests on the procedural bar.” 

Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043 (1989). If the last state court

judgment contains no reasoning, but simply affirms the conviction in a standard order,

the federal habeas court must look to the last reasoned state-court judgment rejecting

the federal claim and apply a presumption that later unexplained orders upholding the

judgment or rejecting the same claim rested upon the same ground. Ylst v.

Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 2594 (1991). Here, the Michigan

Court of Appeals and the Michigan Supreme Court rejected Petitioner’s

post-conviction appeal on the ground that “the defendant has failed to meet the burden

of establishing entitlement to relief under MCR 6.508(D).” These orders did not refer

to subsection (D)(3) nor mention Petitioner’s failure to raise these claims on direct

review as a rationale for rejecting his post-conviction claims. Because the form orders

in this case citing Rule 6.508(D) are ambiguous as to whether they refer to procedural

default or a denial of post-conviction relief on the merits, the orders are unexplained. 

Guilmette v. Howes, 624 F. 3d 286, 291 (6th Cir. 2010). This Court must “therefore

look to the last reasoned state court opinion to determine the basis for the state court’s

rejection” of petitioner’s claims. Id.

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The trial court, in rejecting petitioner’s post-conviction claims, indicated that

Petitioner failed to satisfy the “good cause” or “actual prejudice” requirement of

Michigan Court Rule 6.508(D)(3) for failing to raise his claims during his appeal of

right. (ECF No. 8-28 at 6-13.) The trial court’s reliance on this rule satisfies the

second element of the procedural-default test. Further, reliance on Rule 6.508(D)(3)

was “an adequate and independent state ground” on which the state could rely to

foreclose review, thereby satisfying the third element.6 Amos v. Renico, 683 F.3d 720,

733 (6th Cir. 2012). Petitioner’s remaining four claims, claims that he asserted in the

first instance during his post-conviction review proceedings, are therefore

procedurally defaulted, unless Petitioner demonstrates cause and prejudice.

Petitioner alleges ineffective assistance of appellate counsel as cause to excuse

his failure to raise these claims on direct review. The Sixth Amendment guarantees

a defendant the right to the effective assistance of counsel on the first appeal by right.

Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S. Ct. 830, 836-37 (1985). However, it is

6

 The fact that the trial judge also appears to have discussed the merits of

Petitioner’s claims in addition to invoking the provisions of Rule 6.508(D)(3)

when it was conducting the “actual prejudice” inquiry does not alter this analysis.

Alvarez v. Straub, 64 F. Supp. 2d 686, 695 (E.D. Mich. 1999). A federal court

need not reach the merits of a habeas petition where the last state court opinion

clearly and expressly rested upon procedural default as an alternative ground, even

though it also expressed views on the merits. McBee v. Abramajtys, 929 F.2d 264,

267 (6th Cir. 1991).

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well-established that a criminal defendant does not have a constitutional right to have

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

745, 751-52, 103 S. Ct. 3308, 3312-13 (1983). The Supreme Court has explained:

For 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 vigorous and

effective advocacy. . . . Nothing in the Constitution or our interpretation

of that document requires such a standard.

Id. at 754, 103 S. Ct. at 3314.

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). “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). In

other words, appellate counsel may deliver deficient performance and prejudice a

defendant by omitting a “dead-bang winner,” which is defined as an issue which was

obvious from the trial record and would have resulted in a reversal on appeal. Meade

v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003). If a petitioner demonstrates

that appellate counsel rendered constitutionally-ineffective assistance, he or she must

then demonstrate actual prejudice. 

Petitioner fails to discharge his burden of demonstrating that appellate counsel’s

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performance fell outside the wide range of professionally-competent assistance by

omitting the claims that he raised in his post-conviction motion. Appellate counsel

raised several issues on appeal, and Petitioner supplemented the issues by filing a pro

se Standard 4 brief. Petitioner has not demonstrated that the claims he failed to raise

during direct review are clearly stronger than those raised by appellate counsel. 

Further, as Respondent argues, Petitioner’s later-asserted claims would have fared no

better than the ones raised on direct appeal. Thus, Petitioner has failed to demonstrate

actual prejudice. This being the case, Petitioner has not discharged his burden of

persuading this Court that it should review his procedurally-defaulted claims.

Moreover, Petitioner has not presented any new reliable evidence to support an

assertion of innocence that would allow this Court to consider the procedurallydefaulted claims. Because Petitioner has not presented any new reliable evidence that

he is innocent of these crimes, a miscarriage of justice will not occur if the Court

declines to review Petitioner’s defaulted claims on the merits.

IV. MOTION FOR EVIDENTIARY HEARING

Petitioner has also filed a motion for evidentiary hearing. He seeks to expand

the record to support his ineffective-assistance-of-counsel claims, arguing that he did

not have an opportunity to develop the factual basis for these claims in state court.

In Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388 (2011), the Supreme

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Court held that where habeas claims have been decided on the merits in state court,

a federal court’s review under 28 U.S.C. § 2254(d)(1)—whether the state court

determination was contrary to or a involved an unreasonable application of established

federal law—must be confined to the record that was before the state court. Id. at 

1398. Although Petitioner asserts that the Court may hold an evidentiary hearing

because the state courts did not adjudicate his ineffective assistance claims on the

merits, the Court is not at all persuaded that an evidentiary hearing is proper or

necessary because, as with the state court during post-conviction review, the Court

does not believe that Petitioner’s claims have any merit.

Having determined that Petitioner’s claims do not survive review under

AEDPA, Petitioner’s request for an evidentiary hearing is denied.

V. CERTIFICATE OF APPEALABILITY

Petitioner may not appeal the Court’s denial of his habeas petition unless a

district or circuit judge issues a certificate of appealability. 28 U.S.C. §

2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate of appealability may issue “only

if the applicant has made a substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that

jurists of reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve

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encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.

Ct. 1029, 1034 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595,

1604 (2000)). When a district court denies a habeas claim on procedural grounds

without addressing the merits, a certificate of appealability should issue if it is shown

that jurists of reason would find it debatable whether the petitioner states a valid claim

of the denial of a constitutional right, and that jurists of reason would find it debatable

whether the court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.

Ct. at 1604. 

Having considered the matter, the Court concludes that reasonable jurists would

not debate the propriety of this Court’s resolution of Petitioner’s first two habeas

claims. The Court further concludes that reasonable jurists would not debate the

correctness of its procedural ruling that Petitioner procedurally defaulted his third

through sixth claims. Accordingly, a certificate of appealability shall not issue. 

VI. CONCLUSION AND ORDER

For the reasons stated herein, the Court concludes that Petitioner has failed to

demonstrate that he is being held in violation of his constitutional rights, and that he

is therefore not entitled to the issuance of the writ of habeas corpus. 

Accordingly, 

IT IS ORDERED that the petition for writ of habeas corpus is DENIED and

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this action is DISMISSED WITH PREJUDICE;

IT IS FURTHER ORDERED that a certificate of appealability SHALL NOT

ISSUE; 

IT IS FURTHER ORDERED that Petitioner’s motion for an evidentiary

hearing is DENIED.

Dated: August 28, 2015

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Leonard Carter, # 230820

Kinross Correctional Facility 

16770 S. Watertower Drive

Kincheloe, MI 49788

Laura Moody, AAG

Raina I. Korbakis, AAG

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