UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KENNETH MAXEY,

Petitioner, CASE NO. 2:14-CV-12979

 HONORABLE PAUL D. BORMAN

v. UNITED STATES DISTRICT JUDGE

STEVEN RIVARD,

Respondent.

______________________________________/

OPINION AND ORDER DENYING (1) THE PETITION FOR A WRIT OF

HABEAS CORPUS, (2) A CERTIFICATE OF APPEALABILITY, AND (3)

LEAVE TO APPEAL IN FORMA PAUPERIS

Kenneth Maxey, (“petitioner”), incarcerated at the Chippewa Correctional

Facility in Kincheloe, Michigan, seeks the issuance of a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his

conviction for two counts of assault with intent to do great bodily harm less than

murder, M.C.L.A. § 750.84; two counts of assault with a dangerous weapon,

M.C.L.A. § 750.82; discharge of a firearm at a building, M.C.L.A. § 750.234;

possession of a firearm by a felon, M.C.L.A. § 750.224f; and possession of a

firearm during the commission of a felony, M.C.L.A. § 750.227b. For the reasons

stated below, the petition is DENIED WITH PREJUDICE.

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I. BACKGROUND

Petitioner was convicted of the above offenses following a jury trial in the

Wayne County Circuit Court and was acquitted of assault with intent to commit

murder. 

Petitioner was friends with Shron Bennett (“Shoney”), Dyrric Dunbar, and

Adam Handley. (Tr. 8/31/2009, p. 18). Handley, Bennett, and another friend of

theirs got into a fight in the summer of 2008 with Christopher Sims over a girl. 

The fight progressed to the point that Bennett pulled out a gun. (Id. at 19-20). 

Bennett warned Christopher and his brother Timothy Sims that “next time he sees

[them] there’s gonna be bloodshed and bullets.” (Id. at 21). On several subsequent

occasions, Bennett made shooting gestures at the Sims brothers. (Id. at 21-22).

On April 18, 2009, Christopher was driving in his car with his cousin Derek

Martin. When the men pulled up to a stoplight, petitioner walked up to the car. As

he approached the car, petitioner placed his hand under his shirt as though he was

reaching for a gun. (Id. at 24-26, 55). Christopher Sims told Martin “that was

Kenny, pull off.” (Id. at 28). Although Christopher did not actually see a weapon,

Martin saw a black handgun. (Id. at 30; Tr. 9/1/09, pp. 5-6, 17). Martin drove

away and the two men went to Christopher’s home. (Tr. 8/31/09, pp. 29-30).

Martin and Christopher later left the house to pick up Martin’s girlfriend

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Ronata Brown. (Id. at 30-32). Timothy Sims was on the porch of the house. 

Renea Sims, his mother, later returned home, after hearing about the earlier

encounter between the men. (Id. at 78-81, Tr. 9/1/2009, p. 32). While Timothy

Sims was out on his porch, he was approached by a neighbor, who informed Sims

that a couple of men were in the backyard of Timothy’s house. Timothy and his

mother went to the backyard to check. (Tr. 8/31/2009, pp. 81, 114). Timothy

noticed two men walking in the alley behind the house. (Id. at 83). Timothy

informed his mother, Renea. Renea, afraid that the men were there to steal

Timothy’s car from the backyard, told him to go to the front of the house and call

the police. (Id. at 84; Tr. 9/1/09, p. 38). While Timothy was doing so, he ran into

Derek Dunbar in the front of the house, who was walking up the driveway. (Id.)

Dunbar was wearing a dark hoodie. Timothy Sims testified that Dunbar stopped,

pulled out a black nine millimeter handgun, and began shooting toward the front

porch. (Tr. 8/31/09, pp. 84-87). Renea Sims later testified that one of the two men

in the backyard said “there’s one of them right there,” before the two men began

shooting. The shots missed Renea’s head as she ran and hid behind Timothy’s car.

(Tr. 9/1/09, pp. 39, 68). 

Just before the shooting started, Christopher Sims and Martin pulled up with

Brown, at around 10:00 p.m. As they were walking toward the house, they saw

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someone wearing a hoodie. Christopher asked, “who was that,” at which point a

man began shooting. Brown, Martin, and Christopher ran up the walkway to

Christopher’s backyard. Timothy was standing on the porch at that time, as was a

Mr. Ealy. Renea was hiding behind a car in the backyard. Christopher heard a

large number of shots, including shots coming from the back of his house. 

Christopher, Martin, and Brown all went into the house. By the time they got

inside, the shots stopped. (Id. at 32-36, 87). 

Renea, still hiding behind Timothy’s car, looked in the alley around this time

and saw that Shron Bennett was one of the gunmen. (Tr. 9/1/09, pp. 43, 47). Renea

identified petitioner as the second gunman behind the house, “with a gun on his

side” and with “a long bullet clip in the bottom of it.” (Id. at 45-48). 

During a break in the shooting, Christopher went into his backyard to bring

his mother into the house. As Christopher did so, the shots started up again. By

the time that Christopher and his mother got into the house, the shots stopped

again. (Tr. 8/31/09, pp. 36-37). Christopher saw two shadows in the backyard

running down the alley behind his house. (Id. at 37, 64). 

Petitioner’s conviction was affirmed on appeal, although his case was

remanded for re-sentencing. People v. Maxey, No. 294418, 2011 WL 668368

(Mich. Ct. App. Feb. 24, 2011); reconsideration den., No. 294418 (Mich. Ct. App.

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Apr. 21, 2011); lv. den. 490 Mich. 903, 804 N.W. 2d 561 (2011).

Petitioner filed a post-conviction motion for relief from judgment, which

was denied. People v. Maxey, No. 09-12497-FC (Wayne County Cir. Ct., May 24,

2013). The Michigan appellate courts denied petitioner leave to appeal. People v.

Maxey, No. 316917 (Mich. Ct. App. May 2, 2014); lv. den. 845 N.W.2d 741

(2014).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. Petitioner should be granted a new trial because his attorney was

ineffective in failing to obtain his medical records showing that, contrary

to the trial testimony, he was not capable of running, and in failing to call

witnesses on behalf of petition[er].

II. Petitioner is entitled to resentencing because the statutory sentencing

guidelines were misscored as to offense variable 10, which affected (sic)

the sentencing guideline range.

III. The trial court violated petitioner’s constitutional right to a public

trial by closing the courtroom for jury selection / voir dire, and defense

counsel was constitutionally ineffective in failing to object.

IV. Wayne County’s unconstitutional practice of assigning counsel on

the exact day of the preliminary examination, which has already been

federally condemned, constitutes a state impediment to the effective

assistance of counsel and effectively served to constructively deprive

Petitioner Maxey of his right to counsel at all critical stages of the

judicial proceedings...[requiring reversal due to structural error]. 

V. The trial court erred reversibly in instructing the jury on felonious

assault, which is a cognate lesser included offense of assault with intent

to murder.

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VI. Appellate counsel’s failure to pursue issues 3, 4, and 5 [herein]

constituted ineffective assistance of appellate counsel in violation of his

Sixth Amendment [rights] and this was cause for petitioner[’s] failure to

raise these issues on his direct appeal and resulted in actual prejudice to

petitioner. 

II. STANDARD OF REVIEW

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), imposes the following standard of review for

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 proceeding.

A decision of a state court is “contrary to” clearly established federal law if

the state court arrives at a conclusion opposite to that reached by the Supreme

Court on a question of law or if the state court decides a case differently than the

Supreme Court has on a set of materially indistinguishable facts. Williams v.

Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs 

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when “a state court decision unreasonably applies the law of [the Supreme Court]

to the facts of a prisoner’s case.” Id. at 409. 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.” Id. at 410-11. “[A] state court’s determination that a claim lacks

merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.

86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In

order to obtain habeas relief in federal court, a state prisoner is required to 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.” Harrington, 562 U.S. at 103. A habeas

petitioner should be denied relief as long as it is within the “realm of possibility”

that fairminded jurists could find the state court decision to be reasonable. See

Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).

III. DISCUSSION

A. Claim # 1. The ineffective assistance of trial counsel claims.

Petitioner claims he was denied the effective assistance of trial counsel.

To show that he was denied the effective assistance of counsel under federal

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constitutional standards, a defendant must satisfy a two-prong test. First, the

defendant must demonstrate that, considering all of the circumstances, counsel’s

performance was so deficient that the attorney was not functioning as the

“counsel” guaranteed by the Sixth Amendment. Strickland v. Washington, 466

U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong

presumption that counsel’s behavior lies within the wide range of reasonable

professional assistance. Id. In other words, petitioner must overcome the

presumption that, under the circumstances, the challenged action might be sound

trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that

such performance prejudiced his defense. Id. To demonstrate prejudice, the

defendant must show that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “Strickland’s test for prejudice is a demanding one.

‘The likelihood of a different result must be substantial, not just conceivable.’”

Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011)(quoting Harrington, 562

U.S. at 112). The Supreme Court’s holding in Strickland places the burden on the

defendant who raises a claim of ineffective assistance of counsel, and not the state,

to show a reasonable probability that the result of the proceeding would have been

different, but for counsel’s allegedly deficient performance. See Wong v.

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Belmontes, 558 U.S. 15, 27 (2009).

On habeas review, “the question ‘is not whether a federal court believes the

state court’s determination’ under the Strickland standard ‘was incorrect but

whether that determination was unreasonable-a substantially higher threshold.’”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan,

550 U.S. 465, 473 (2007)). “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.”

Harrington v. Richter, 562 U.S. at 101. Indeed, “because the Strickland standard

is a general standard, a state court has even more latitude to reasonably determine

that a defendant has not satisfied that standard.” Knowles, 556 U.S. at 123 (citing

Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to the § 2254(d)(1) standard,

a “doubly deferential judicial review” applies to a Strickland claim brought by a

habeas petitioner. Id. This means that on habeas review of a state court

conviction, “a state court must be granted a deference and latitude that are not in

operation when the case involves review under the Strickland standard itself.”

Harrington, 562 U.S. at 101. “Surmounting Strickland’s high bar is never an easy

task.” Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). 

Because of this doubly deferential standard, the Supreme Court has

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indicated that:

Federal habeas courts must guard against the danger of equating

unreasonableness under Strickland with unreasonableness under §

2254(d). When § 2254(d) applies, the 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.

Harrington v. Richter, 562 U.S. at 105.

In addition, a reviewing court must not merely give defense counsel the

benefit of the doubt, but must also affirmatively entertain the range of possible

reasons that counsel may have had for proceeding as he or she did. Cullen v.

Pinholster, 563 U.S. 170, 196 (2011). 

This Court is aware that “relying on ‘the harsh light of hindsight’ to cast

doubt on a trial that took place” eight years ago “is precisely what Strickland and

AEDPA seek to prevent.” Harrington v. Richter, 562 U.S. at 107.

Petitioner first claims that trial counsel was ineffective for failing to present

medical records showing that petitioner had been shot in the knee four months

before the shooting. Petitioner claims that these medical records would have

shown that he was incapable of running at the time of the shooting and hence

could not have been one of the shooters who ran from the crime scene. 

The Michigan Court of Appeals rejected petitioner’s claim as follows:

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In the instant case, the medical records indicate only that defendant was

shot in to his left knee-the records provide no indication that

defendant’s injury made it impossible for him to run from a crime scene

four months later. Accordingly, counsel may have determined that the

evidence lacked sufficient probative value. Alternatively, trial counsel

may have reasonably considered the medical records too prejudicial

given that they reveal defendant’s involvement in another shooting and

daily marijuana use. Whatever the case, we cannot conclude that

counsel’s decision to attack the eyewitness’s ability to accurately

perceive the incident rather than introduce the medical records for this

purpose fell below an objective standard of reasonableness. Moreover,

defendant has not shown the alleged error was prejudicial. Without an

indication that the gunshot wounds actually prevented defendant from

running four months later, there can be no reasonable probability that

the jury would have discarded the eyewitness’s testimony that she saw

defendant run up the alley because it was fabricated or otherwise

inaccurate and acquitted defendant on that basis.

People v. Maxey, 2011 WL 668368, at *2.

Counsel was not ineffective in failing to introduce the medical records

because nothing in these records would indicate that the injury to petitioner’s knee

made it impossible for him to run. See e.g. Barnes v. Elo, 339 F.3d 496, 502–03

(6th Cir. 2003). Petitioner is not entitled to relief on this claim.

Petitioner next contends that trial counsel was ineffective for failing to call

his codefendant, Shron Marion Bennett, to testify that petitioner was not present at

the time of the shooting. 

The Michigan Court of Appeals rejected petitioner’s claim as follows:

Similarly, defendant has not shown counsel seriously erred by failing

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to call codefendant Bennett to testify that defendant was not present

when the shooting occurred. First, defendant has not established that

Bennett would have testified regarding defendant’s absence from the

crime scene. In his guilty plea made during the second day of trial,

Bennett never said defendant was not at the crime scene, nor has he

signed any affidavit to that effect. Further, calling Bennett to the stand

would have been a last minute decision. Because Bennett maintained

his constitutional right to remain silent and not testify until he pleaded

guilty the second day into trial, counsel may have thought it too risky

to call him without adequate preparation. In addition, given Bennett’s

long friendship with defendant, counsel may have decided that the

testimony was not sufficiently trustworthy and that, as a matter of trial

strategy, the better option was to attack the eyewitness’s ability to

perceive the events. Again, defendant has not excluded these

possibilities or shown a reasonable probability that the jury would have

acquitted him had Bennett testified.

People v. Maxey, 2011 WL 668368, at *2.

The Michigan Court of Appeals’ decision was not unreasonable. Mr.

Bennett was preparing to go to trial with petitioner. Mr. Bennett did not plead

guilty until the second day of trial. Had Mr. Bennett gone to trial, he could have

invoked his Fifth Amendment right against self-incrimination if called to testify.

Defense counsel could therefore have reasonably determined at the beginning of

petitioner’s trial that it would not be in petitioner’s best interest to call him as a

defense witness. See e.g. Davis v. Lafler, 658 F.3d 525, 537 (6th Cir. 2011). 

Although Mr. Bennett pleaded guilty on the second day of trial, he did not indicate

during the plea hearing that petitioner was not involved in the shooting. The

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Court declines to find that Counsel was ineffective in failing to investigate

possible testimony of petitioner’s codefendant, because Petitioner has not shown

that counsel had any indication at the time of trial that Mr. Bennett would have

testified in a way that would have benefitted petitioner’s case. See e.g. Watkins v.

Lafler, 517 F.App’x 488, 498 (6th Cir. 2013).

Petitioner finally contends that trial counsel was ineffective for failing to

subpoena key witnesses to refute Renea Sims’s trial testimony.

Petitioner does not provide the names of the other witnesses, nor has he

provided the Michigan courts or this Court with any affidavits from these

witnesses concerning their proposed testimony and willingness to testify on

petitioner’s behalf. Conclusory allegations of ineffective assistance of counsel,

without any evidentiary support, do not provide a basis for habeas relief. See

Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). By failing to present any

evidence to the state courts in support of his ineffective assistance of counsel

claim, petitioner is not entitled to an evidentiary hearing on that claim before this

Court. See Cooey v. Coyle, 289 F.3d 882, 893 (6th Cir. 2002)(citing 28 U.S.C. §

2254(e)(2)(A)(ii)). Petitioner has not offered either to the Michigan courts or to

this Court any evidence beyond his own assertions as to the identity of the

witnesses, whether the witnesses would have been able to testify, or as to the

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contents of these witnesses’ testimony. In the absence of such proof, petitioner is

unable to establish that he was prejudiced by counsel’s failure to call these alleged

witnesses to testify at trial, so as to support the second prong of an ineffective

assistance of counsel claim. See Clark v. Waller, 490 F.3d 551, 557 (6th Cir.

2007). Petitioner is not entitled to relief on his first claim.

B. Claim # 2. The sentencing guidelines claim.

Petitioner contends that his Michigan Sentencing Guidelines were

incorrectly scored as to Offense Variable 10, which effected the statutory

sentencing guideline range.

Errors in the application of the state sentencing guidelines cannot

independently support habeas relief. See Kissner v. Palmer, 826 F.3d 898, 904

(6th Cir. 2016). Petitioner’s claim that the state trial court improperly departed

above the correct sentencing guidelines range by scoring points for OV 10 thus

does not entitle him to federal habeas relief, because he has failed to demonstrate

that such a departure violated any of his federal due process rights. Austin v.

Jackson, 213 F.3d 298, 301 (6th Cir. 2000).

C. Claim # 3. The denial of public trial/ineffective assistance of

counsel claim.

Petitioner contends that his right to a public trial was violated when the

14
judge closed the courtroom for jury selection, resulting in a structural error. In the

alternative, petitioner argues that trial counsel was ineffective for failing to object

to the closure of the courtroom. Because the two doctrines of structural error and

ineffective assistance of counsel are intertwined, the Court will address these

claims together.

Respondent contends that petitioner’s public trial claim is waived because

petitioner failed to object to the closure of the courtroom for the jury selection

process. 

“The central aim of a criminal proceeding must be to try the accused fairly.”

Waller v. Georgia, 467 U.S. 39, 46 (1984). The Sixth Amendment public-trial

guarantee was created to further that aim. Id. (citing Gannett Co. v. DePasquale,

443 U.S. 368, 380 (1979)). A public trial helps to ensure that judge and

prosecutor carry out their duties responsibly, encourages witnesses to come

forward, and discourages perjury. Waller, 467 U.S. at 46. The violation of the

constitutional right to a public trial is a structural trial error, not subject to the

harmless error analysis. Id. at 49-50 & n.9. 

A criminal defendant’s Sixth Amendment right to a public trial is violated

when the trial court excludes the public from the voir dire of prospective jurors,

without considering reasonable alternatives to closure. Presley v. Georgia, 558

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U.S. 209, 216 (2010). Under Waller, to justify the closure of a courtroom, “the

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

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

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

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

467 U.S. at 48. The structural error doctrine ensures certain basic, constitutional

guarantees that define the framework of any criminal trial; structural error

“affect[s] the framework within which the trial proceeds,” rather than being

“simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279,

310 (1991). Denial of the right to a public trial is a structural error, but this right

is subject to exceptions. A judge may deny a defendant his right to an open

courtroom by making proper factual findings in support of the decision to close

the courtroom. See Waller, 467 U.S. at 45. 

Whether a defendant is entitled to an automatic reversal due to the closure

of the courtroom depends on when the challenge to the closure of the courtroom

was initially raised. “If an objection is made at trial and the issue is raised on

direct appeal, the defendant generally is entitled to ‘automatic reversal’ regardless

of the error’s actual ‘effect on the outcome.’” Weaver v. Massachusetts, 137 S. Ct.

1899, 1903 (2017)(quoting Neder v. United States, 527 U.S. 1, 7 (1999)). If,

16
however, “the defendant does not preserve a structural error on direct review but

raises it later in the context of an ineffective-assistance claim ... the defendant as a

general rule bears the burden to meet two standards. First, the defendant must

show deficient performance-that the attorney's error was ‘so serious that counsel

was not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment.’” Weaver, 137 S. Ct. at 1910 (quoting Strickland, 466 U.S. at 687).

“Second, the defendant must show that the attorney's error ‘prejudiced the

defense.’” Id. To demonstrate prejudice in most cases, the defendant must show “a

reasonable probability that ... the result of the proceeding would have been

different” but for attorney error. Strickland, 466 U.S. at 694. 

The Supreme Court explained the rationale behind granting a reversal for a

structural error when an objection is raised at trial and on direct review, in contrast

to a later claim based on the ineffectiveness of trial counsel for failing to object to

the closure of the courtroom, as follows: 

[W]hen a defendant objects to a courtroom closure, the trial court can

either order the courtroom opened or explain the reasons for keeping

it closed. When a defendant first raises the closure in an

ineffective-assistance claim, however, the trial court is deprived of

the chance to cure the violation either by opening the courtroom or

by explaining the reasons for closure.

Furthermore, when state or federal courts adjudicate errors objected

to during trial and then raised on direct review, the systemic costs of

17
remedying the error are diminished to some extent. That is because, if

a new trial is ordered on direct review, there may be a reasonable

chance that not too much time will have elapsed for witness

memories still to be accurate and physical evidence not to be lost.

There are also advantages of direct judicial supervision. Reviewing

courts, in the regular course of the appellate process, can give

instruction to the trial courts in a familiar context that allows for

elaboration of the relevant principles based on review of an adequate

record. For instance, in this case, the factors and circumstances that

might justify a temporary closure are best considered in the regular

appellate process and not in the context of a later proceeding, with its

added time delays.

Weaver, 137 S. Ct. at 1912 (internal citations omitted). 

Although the right to a public trial is a fundamental right, it can be waived

if a habeas petitioner either acquiesces to the closure of the courtroom or fails to

object. See Johnson v. Sherry, 586 F.3d 439, 444 (6th Cir. 2009)(citing Freytag v.

Commissioner, 501 U.S. 868, 896 (1991)(“[T]he Sixth Amendment right to a trial

that is ‘public,’ provide[s] benefits to the entire society more important than many

structural guarantees; but if the litigant does not assert [it] in a timely fashion, he

is foreclosed.”); Peretz v. United States, 501 U.S. 923, 936–37 (1991)(citing

Levine v. United States, 362 U.S. 610, 619 (1960)). Other circuits have reached

the same conclusion. See U.S. v. Reagan, 725 F.3d 471, 488-89 (5th Cir.

2013)(defendants waived claim that right to public trial violated by the closing of

the courtroom during voir dire, hence, claim unreviewable on appellate review);

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U.S. v. Christi, 682 F.3d 138, 142-43 (1st Cir. 2012)(defendant waived any claim

of error in court limiting public access to courtroom during most of jury

instructions by counsel’s failure to object); U.S. v. Rivera, 682 F.3d 1223, 1232

(9th Cir. 2012)(defendant may forfeit the right to a public trial, either by

affirmatively waiving it or by failing to assert it in a timely fashion). 

Although structural errors are presumed to be prejudicial and thus not

subject to harmless error review, such errors are nevertheless subject to the

general rules of waiver, forfeiture, and default. See Johnson v. United States, 520

U.S. 461, 466 (1997)(waived or forfeited structural error subject to plain error

review under Fed. R.Crim. P. 52(b)). See also United States v. Suescun, 237 F.3d

1284, 1288, n. 12 (11th Cir. 2001)(“Structural defects do not absolve a

defendant’s waiver of a defense or objection.”). 

The fact that petitioner did not on the record expressly agree to the

exclusion of the public from the jury selection likewise does not alter this analysis. 

Certain fundamental rights of a criminal defendant, such as the right to counsel or

whether to plead guilty, cannot be waived by counsel without the express,

knowing and voluntary consent of the defendant, see New York v. Hill, 528 U.S.

110, 114 (2000), but for other rights, “waiver may be effected by action of

counsel.” Id. The Supreme Court has noted that it has “in the context of a broad

19
array of constitutional and statutory provisions, articulated a general rule that

presumes the availability of waiver,” even when that waiver involves “the most

basic rights of criminal defendants.” Id. at 114. Moreover, “the lawyer has-and

must have-full authority to manage the conduct of the trial.... [D]ecisions by

counsel are generally given effect as to what arguments to pursue, what

evidentiary objections to raise, and what agreements to conclude regarding the

admission of evidence.” Id. at 115 (internal citations omitted).

Therefore, various federal circuit courts have held that “[a] defendant’s

attorney’s waiver of the right to a public trial is effective on the defendant.”

United States v. Hitt, 473 F.3d 146, 155 (5th Cir. 2006)(citing United States v.

Sorrentino, 175 F.2d 721, 723 (3d Cir. 1949); Martineau v. Perrin, 601 F.2d

1196, 1200–01 (1st Cir. 1979)). The Sixth Circuit in Johnson v. Sherry, supra.,

essentially acknowledged that the petitioner’s right to a public trial had been

waived by counsel’s failure to object to the closure of the courtroom. Johnson,

586 F.3d at 442. The Supreme Court has yet to hold that an attorney cannot waive

his client’s right to a public trial. See Guyton v. Butler, 490 F.App’x 331, 333

(11th Cir. 2012). Petitioner’s failure to object to the closure of the courtroom

during voir dire waives federal habeas review of his public trial claim. Johnson,

586 F.3d at 444. 

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Petitioner first raised his right to a public trial claim in his motion for relief

from judgment. The trial court found that the closure was narrowly tailored and

an overriding interest to insure the integrity of the trial existed, as follows:

In this case, the trial court’s closure of the courtroom during jury

selection and voir dire was a procedural safeguard implemented to

effectively protect and prevent jurors or material witnesses involved

in the joint trial of defendants[] Maxey, Dunbar and Bennett from

being privy to potentially sensitive information that could undermine

the integrity of the trials and/or possibly prevent the jury from

making a reliable judgment about the guilt or innocence of each

defendant. 

Moreover, while a defendant has a compelling interest in having

members of his family present during trial, the trial court’s decision

involved only a partial closure, not a total one. Thus, the court did not

completely preclude members of defendant’s family from being

present. It appears that the trial court narrowly tailored its restriction

on access by limiting the restriction to the voir dire proceedings only.

In sum, there is no basis in the record for concluding that defendant’s

right to a public trial was violated. Therefore, defendant also cannot

succeed on his related claims that defense and appellate counsel were

ineffective for not objecting or raising this issue at trial or on appeal.

On the basis of the record presented, any objection would have been

futile. Counsel is not required to make a futile objection. Defendant’s

claim is without merit.

People v. Maxey, No. 09-12497-FC (Wayne County Cir. Ct., May 24, 2013), pp.

4-5 (internal citations omitted).

Petitioner argues in his habeas petition that trial counsel was ineffective for

failing to object to the closure of the courtroom during voir dire.

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First, although the trial court chose to partially close the courtroom during

voir dire, trial counsel’s decision to agree to the closure of the courtroom for a

non-public voir dire could well have been a reasonable trial strategy for the

purpose of obtaining more honest or forthright responses from jurors during such

a non-public voir dire. This defeats petitioner’s ineffective assistance of counsel

claim. See Horton v. Allen, 370 F.3d 75, 82-83 (1st Cir. 2004); see also Jones v.

Bradshaw, 489 F. Supp. 2d 786, 841 (N.D. Ohio 2007). 

Secondly, at the time of petitioner’s trial in 2009, there was some question

as to whether the Sixth Amendment public trial right applied to the voir dire

process. At the time of petitioner’s trial, the Supreme Court had held that the First

Amendment right of public access applied during voir dire, see Press-Enter. Co.

v. Super. Ct., 464 U.S. 501, 510-11 (1984), but one justice concurring in that

holding suggested that the Sixth Amendment public trial right might have a more

limited scope. See Id. at 516 (Stevens, J., concurring). Presley was not decided

until 2010, after petitioner’s trial. Because petitioner’s counsel at the time of the

trial in 2009 could have reasonably questioned whether petitioner had any

constitutional right to an open courtroom during voir dire, counsel was not

ineffective for failing to object to the closure of the courtroom during jury

selection. See Woodson v. Hutchinson, 52 F.App’x 195, 198 (4th Cir. 2002). 

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Even if trial counsel was deficient for failing to object to the closure of the

courtroom during voir dire, petitioner failed to show that he was prejudiced by

counsel’s failure to object. The fact that a structural error might have occurred

does not mean that prejudice should be presumed, for purposes of petitioner’s

ineffective assistance of counsel claim. See Harrison v. Woods, No. 15-1046,

2015 WL 4923099, at *2 (6th Cir. Aug. 18, 2015)(citing Premo v. Moore, 562

U.S. 115, 127–28 (2011)). Petitioner would have to establish that he was actually

prejudiced by counsel’s failure to object to the closure of the courtroom. See

Harrison, 2015 WL 4923099, at *2. Petitioner failed to allege, let alone establish,

that he was actually prejudiced by the closure of the courtroom for jury selection. 

Because petitioner failed to show that a different result would have happened had

trial counsel objected to the closure of the courtroom for jury selection, petitioner

is not entitled to habeas relief on his ineffective assistance of counsel claim. See

id.

D. Claim # 4. The constructive denial of counsel claim.

Petitioner contends that he was constructively denied the assistance of

counsel because his attorney was not appointed to represent him until the day of

the preliminary examination.

The Supreme Court has held that in cases where a criminal defendant has

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been denied counsel at a preliminary hearing, “the test to be applied is whether the

denial of counsel ... was harmless error.” Coleman v. Alabama, 399 U.S. 1, 11

(1970)(citations omitted); see also Adams v. Illinois, 405 U.S. 278, 282-83

(1972)(“[T]he lack of counsel at a preliminary hearing involves less danger to ‘the

integrity of the truth-determining process at trial’ than the omission of counsel at

the trial itself or on appeal.”)(internal quotation marks omitted). The Sixth Circuit

has applied a harmless error analysis on habeas review of claims that a habeas

petitioner was denied the right to counsel at a preliminary examination or hearing

in a state criminal proceeding. See Takacs v. Engle, 768 F.2d 122, 124 (6th Cir.

1985); McKeldin v. Rose, 631 F.2d 458, 460–61 (6th Cir. 1980); see also Dodge v.

Johnson, 471 F.2d 1249, 1252 (6th Cir. 1973)(record failed to establish that lack

of counsel at preliminary examination prejudiced petitioner’s rights at trial or in

any way tainted finding of guilt). 

Petitioner raised this claim in his post-conviction motion for relief from

judgment. In denying the claim, the trial court judge found that petitioner failed to

argue that he had been harmed by counsel’s appointment on the day of the

preliminary examination, in that three witnesses identified petitioner and defense

counsel had “cross-examined [the witnesses] at length, in a manner not inartful.”

People v. Maxey, No. 09-12497-FC, pp. 6-7 (Wayne County Circuit Ct., May 24,

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2013). 

A review of the preliminary examination shows that petitioner’s counsel

extensively cross-examined the witnesses. Counsel elicited statements from

Christopher Sims and Timothy Sims that they never saw petitioner at the house on

the night of the shooting nor saw petitioner fire a gun. (Tr. 5/20/09, pp. 27-28, 76). 

Counsel also questioned Renea Sims extensively about the problems with her

identification, getting her to admit that she was down on the ground both times

when the shooting happened. Ms. Sims also admitted that she did not see who did

the shooting the first time. She further testified that she wore reading glasses, that

she was lying next to a car near a six foot tall fence when she saw the men running

away, and that she never saw petitioner actually discharge a firearm, even though

she saw him holding one. (Id. at 50-57). Counsel later opposed the bindover. (Id.

at 83-84). Petitioner has failed to show that he was actually prejudiced by trial

counsel’s allegedly inadequate preparation time at the preliminary examination, so

as to show that he was constructively denied the assistance of counsel; petitioner

is not entitled to relief on his constructive denial of counsel claim. See Burgess v.

Booker, 526 F.App’x 416, 432–33 (6th Cir. 2013).

E. Claim # 5. The instructional error claim.

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Petitioner alleges that the trial court reversibly erred by instructing the jury

on felonious assault or assault with a dangerous weapon as a lesser included

offense of assault with intent to murder and assault with the intent to cause great

bodily harm less than murder. 

An erroneous jury instruction warrants habeas corpus relief only where the

instruction “‘so infected the entire trial that the resulting conviction violates due

process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991)(quoting Cupp v. Naughten,

414 U.S. 141, 147 (1973)). “[I]t must be established not merely that the

instruction is undesirable, erroneous, or even ‘universally condemned’, but that it

violated some [constitutional] right.’” Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974)). A jury instruction may not be judged in artificial isolation, but must

be considered in the context of the instructions as a whole and the trial record. See

Johnson v. Smith, 219 F. Supp. 2d 871, 882 (E.D. Mich. 2002).

In the present case, there was sufficient evidence to support giving an

instruction on the offense of assault with a dangerous weapon as a lesser offense. 

Under Michigan law, the elements of assault with a dangerous weapon are: (1) an

assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the

victim in reasonable apprehension of an immediate battery. See Gardner v.

Kapture,, 261 F. Supp. 2d 793, 804 (E.D. Mich. 2003)(citing People v. Lawton,

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196 Mich. App. 341, 349, 492 N.W.2d 810 (1992)). An instruction on the lesser

offense of assault with a dangerous weapon was appropriate because the jury

could rationally determine from the evidence that petitioner did not intend to kill

or do great bodily harm to two of the victims who were caught in the cross-fire but

merely intended to put them “in reasonable apprehension of an immediate

battery.” Because the evidence supported the giving of such an instruction,

petitioner is not entitled to relief on his claim. See McHam v. Workman, 247

F.App’x 118, 120-21 (10th Cir. 2007)(murder defendant was not constitutionally

entitled to preclude state trial court from sua sponte giving jury instruction on

lesser included offense of manslaughter, where evidence was sufficient to support

giving of such instruction).

F. Claim # 6. The ineffective assistance of appellate counsel claim.

In his sixth claim, petitioner contends that appellate counsel was ineffective

for failing to raise on his appeal of right claims 3, 4, and 5 contained in his habeas

petition. 

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,

396-397 (1985). However, court appointed counsel does not have a constitutional

duty to raise every nonfrivolous issue requested by a defendant. Jones v. Barnes,

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463 U.S. 745, 751 (1983). Petitioner’s third through fifth claims are without

merit. Because these claims are without merit, appellate counsel was not

ineffective in his handling of petitioner’s direct appeal. “[A]ppellate counsel

cannot be found to be ineffective for ‘failure to raise an issue that lacks merit.’”

Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010)(quoting Greer v.

Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)).

The Court denies the petition for a writ of habeas corpus. The Court will

also deny a certificate of appealability. In order to obtain a certificate of

appealability, a prisoner must make a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the

applicant is required to show that reasonable jurists could debate whether, or agree

that, the petition should have been resolved in a different manner, or that the

issues presented were adequate to deserve encouragement to proceed further.

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a

habeas petitioner’s constitutional claims on the merits, the petitioner must

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

the constitutional claims to be debatable or wrong. Id. at 484. “The district court

must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C.

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foll. § 2254. 

For the reasons stated in this opinion, the Court denies petitioner a

certificate of appealability because reasonable jurists would not find this Court’s

assessment of petitioner’s claims to be debatable or wrong. Johnson v. Smith, 219

F. Supp. 2d at 885. The Court will also deny petitioner leave to appeal in forma

pauperis, because the appeal would be frivolous. Allen v. Stovall, 156 F. Supp. 2d

791, 798 (E.D. Mich. 2001).

IV. CONCLUSION

Accordingly, the Court DENIES WITH PREJUDICE the petition for a

writ of habeas corpus. The Court further DENIES a certificate of appealability

and leave to appeal in forma pauperis.

SO ORDERED.

s/Paul D. Borman 

Paul D. Borman

United States District Judge

Dated: September 26, 2017

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each

attorney or party of record herein by electronic means or first class U.S. mail on September 26,

2017.

s/Deborah Tofil 

Case Manager

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