UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 Petitioner Terrence Banks is currently serving a prison sentence in the Thumb 

Correctional Facility in Lapeer, Michigan. He filed a pro se petition for a writ of habeas corpus 

in this Court, challenging his state-court convictions for, among other offenses, assault with 

intent to commit murder. Having reviewed the petition, the warden’s response, Petitioner’s reply 

brief, and the state-court record, the Court finds that the state court reasonably concluded that 

Petitioner’s claims of error were without merit. Therefore, the petition will be DENIED. 

I.

Although the following recitation of the facts is taken primarily from the Michigan Court 

of Appeals’ opinion, see 28 U.S.C. § 2254(e)(1), it is supplemented by portions of the trial 

transcript, see Wood v. Allen, 558 U.S. 290, 300 (2010) (recognizing that it is unsettled whether 

the deference owed to state-court factual findings under § 2554(e)(1) applies when the state court 

adjudicates a claim on the merits such that § 2254(d)(2) applies). 

TERRENCE BANKS, 

 Petitioner, 

 

v. 

 

KENNETH MCKEE, 

 Respondent. 

Case No. 14-cv-13566 

Honorable Laurie J. Michelson 

Magistrate Judge R. Steven Whalen 

OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS 

[1], DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND 

GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS. 

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Petitioner’s conviction arose out of the shooting of a taxi driver in Detroit. Petitioner was 

not present in the courtroom during the trial. (R. 11-8, PID 305; R. 11-9, PID 490.) The jury 

heard the following evidence at trial. 

On March 30, 2011, the victim, Mian Mayen, was working as a cab driver for Checker 

Cab. (R. 11-9, PID 506.) At 10:00 pm, he responded to a call to pick up a customer at 4614 

Stockton in Detroit. (Id.) Defense counsel stipulated that the person Mayen picked up was 

Petitioner. People v. Terrence Banks, No. 308181, 2013 Mich. App. LEXIS 696, at *2 (Ct. App. 

Apr. 16, 2013); (R. 11-9, PID 507). Petitioner put $20 in the deposit box and asked to be taken to 

Mack and Seyburn in Detroit. Id. After Mayen began driving, Petitioner asked him where he was 

from and “what’s your belief . . . what’s your religion?” (R. 11-9, PID 512.) Mayen answered 

these questions and Petitioner fell silent. Banks, 2013 Mich. App. LEXIS 696, at *2. 

As the cab approached Seyburn and Mack, Petitioner asked Mayen to let him out. Id.

When Mayen stopped, Petitioner fired several gun shots at him through the partition in the cab. 

Id. Mayen felt pain in his back but couldn’t see where he had been hit. (R. 11-9, PID 515.) 

Petitioner then fired another gunshot and demanded money—“give me my money back.” (Id.) 

Mayen threw the money outside the cab and told Petitioner to “keep it.” Banks, 2013 Mich. App. 

LEXIS 696, at *2. Petitioner then shot Mayen for the fourth time. Id. The bullet hit Mayen’s 

back and came out of his stomach. (R. 11-9, PID 517.) 

Realizing that Petitioner was not going to get out of his cab, Mayen decided “I have to go 

to hospital or the police” and started driving. (R. 11-9, PID 518.) Petitioner continued firing for a 

total of seven or eight shots. Banks, 2013 Mich. App. LEXIS 696, at *2. Mayen testified that he 

was certain he was going to die at this point. Id. So he drove the cab at a speed of 70 miles per 

hour, running several red lights in order to get the attention of the police. Id. Petitioner was still 

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in the car at this point, ordering Mayen to let him out and hitting the taxi partition. Id. Finally, 

Mayen came upon a police vehicle at Connor and Harper, and began honking his horn, flashing 

his high beams, and waving at the police in order to get their attention. Id. 

In the police car were officers Ryan May and Christopher Hardwood. May was driving 

the police vehicle, and he pulled over after seeing Mayen flashing his high beam lights. Id. May 

noticed that Mayen was “covered with blood,” and upon shining his light into the backseat, saw 

“a gentleman [with] an assault rifle and it looked like he was trying to hide it.” (R. 11-9, PID 

541.) Mayen told May that the person in the backseat had shot him. Banks, 2013 Mich. App. 

LEXIS 696, at *2. May told Hardwood that the person in the backseat had a gun, and Hardwood 

then exited the vehicle, ran to the cab, and opened the rear door. Id. A black assault rifle fell to 

the ground. Id. The officers then arrested Petitioner and searched him for additional weapons. Id.

They found a brown paper bag filled with nine millimeter ammunition (that would correspond 

with the assault rifle) on Petitioner’s person. Id.; (R. 11-9, PID 544.) The officers then arrested 

Petitioner. Id. Mayen survived the gunshot wounds after surgery and a hospital stay. Id.

A jury convicted Petitioner of the following offenses: assault with intent to commit 

murder, Mich. Comp. Laws § 750.83; assault with intent to do great bodily harm less than 

murder, Mich. Comp. Laws § 750.84; felon in possession of a firearm, Mich. Comp. Laws § 

750.224f; possession of a firearm in the commission of a felony, second offense, Mich. Comp. 

Laws § 750.227b. (R. 11-1, PID 126.) The jury acquitted him on a charge of armed robbery. (Id.) 

Petitioner was sentenced as a fourth felony habitual offender, Mich. Comp. Laws § 769.12. 

The Michigan Court of Appeals affirmed Petitioner’s convictions. Banks, 2013 Mich. 

App. LEXIS 696, at *2. The Michigan Supreme Court denied leave to appeal on October 28, 

2013, because it was “not persuaded that the questions presented should be reviewed by this 

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Court.” People v. Banks, 838 N.W.2d 165, 165 (Mich. 2013). Petitioner filed his petition in this 

Court on September 9, 2014. (R. 1.) The Court granted Petitioner leave to amend his petition, 

and he filed an amended petition on October 29, 2015. (R. 13.) Petitioner’s amended petition 

asserts the following grounds for relief: 

(1) Petitioner did not knowingly, intelligently, unequivocally or voluntarily waive 

his right to counsel because he was not warned of the dangers of selfrepresentation, the trial court did not adequately inquire into petitioner’s 

background, education, age or mental state, and Petitioner only asked to represent 

himself because his trial counsel was unprepared; 

(2) The trial judge failed to obtain a reaffirmation of petitioner’s waiver of his 

right to counsel at subsequent hearings; 

(3) The trial judge violated the Double Jeopardy Clause by instructing the jury on 

assault with intent to commit murder and the lesser offense of assault with intent 

to do great bodily harm; 

(4) Petitioner’s right to confrontation was violated when the victim was permitted 

to wear a hood to hide his identity at the preliminary examination; 

(5) The prosecutor withheld exculpatory evidence by permitting the victim to 

conceal his identity at the preliminary examination; 

(6) Petitioner was constructively denied the assistance of counsel at the 

preliminary examination because his counsel met with him only a few minutes 

before the preliminary examination and did not object to the examining magistrate 

permitting the victim to wear a hood at the preliminary examination; and 

(7) The prosecutor committed misconduct. 

(See R. 13.) 

II.

As a preliminary matter, Respondent argues that Petitioner filed his amended petition 

after the statute of limitations expired, and therefore, claims raised for the first time in the 

amended petition are time-barred. The Antiterrorism and Effective Death Penalty Act of 1996, 

Pub.L. No. 104-132, 110 Stat. 1214 (“AEDPA”) applies to all habeas petitions filed after the 

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Act’s effective date, April 24, 1996, and imposes a one-year limitations period. 28 U.S.C. § 

2244(d)(1). This one-year limitation period does not begin to run until 90 days after the 

conclusion of direct appeal. See Jimenez v. Quarterman, 555 U.S. 113, 120 (2009) (stating that a 

conviction becomes final when “the time for filing a certiorari petition expires”); Lawrence v. 

Florida, 549 U.S. 327, 333 (2007). Here, the Michigan Supreme Court denied leave to appeal on 

October 28, 2013, and the time for seeking a writ of certiorari with the United States Supreme 

Court expired on January 26, 2014. Petitioner dated his federal habeas petition on September 9, 

2014. (R. 1.) Petitioner dated his amended petition October 12, 2015. (R. 13, PID 888.) 

Respondent acknowledges that petitioner’s original habeas petition was timely filed. However, 

Respondent says that Petitioner’s Brady1 claim, his double jeopardy claim, his error in 

instructions claim, his confrontation clause claim, his ineffective assistance of counsel at the 

preliminary examination claim, and his prosecutorial misconduct claim from the preliminary 

examination do not relate back to the claims raised by petitioner in his original habeas petition. 

When a habeas petitioner files an original petition within the one-year deadline, and later 

presents new claims in an amended petition that is filed after the deadline passes, the new claims 

will relate back to the date of the original petition only if the new claims share a “common core 

of operative facts” with the original petition. Mayle v. Felix, 545 U.S. 644, 664 (2005). And in 

this case, Petitioner did raise a double jeopardy claim, a confrontation clause claim, an 

ineffective assistance of counsel claim, and a prosecutorial misconduct claim in his original 

petition, even if the claims presented in his original petition were somewhat conclusory and 

unsupported. And Petitioner’s Brady claim appears to be related to his confrontation clause 

claim. Thus, it appears that Mayle’s test for relation back is met. 

 

1

Brady v. Maryland, 373 U.S. 83, 87 (1963). 

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Even if the claims do not all relate back, “judicial economy sometimes dictates reaching 

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

procedural bar issues are complicated.” Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999) 

(internal citations omitted). Because the statute of limitations does not constitute a jurisdictional 

bar to habeas review, a federal court can, in the interest of judicial economy, proceed to the 

merits of a habeas petition. See Smith v. State of Ohio Dep’t of Rehabilitation, 463 F.3d 426, 

429, n.2 (6th Cir. 2006) (quoting Trussell v. Bowersox, 447 F.3d 588, 590 (8th Cir. 2006)). This 

Court need not resolve the dispute over the timeliness of the claims in the amended petition. 

Assuming without deciding that the amended petition was timely, it fails on the merits. See Ahart 

v. Bradshaw, 122 F. App’x 188, 192 (6th Cir. 2005). 

III.

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

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

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

the merits,” AEDPA prohibits this Court from granting habeas corpus relief unless the 

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

application of, clearly established Federal law, as determined by the Supreme Court of the 

United States; or (2) resulted in a decision that was based on an unreasonable determination of 

the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. § 

2254(d). But “[w]hen a state court does not address a claim on the merits, . . . ‘AEDPA 

deference’ does not apply and [this Court] will review the claim de novo.” Bies v. Sheldon, 775 

F.3d 386, 395 (6th Cir. 2014). 

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A.

Petitioner’s first claim concerns his issues with his appointed attorneys and his attempt to 

waive his right to counsel shortly before trial. At the final pre-trial conference, Petitioner had the 

following exchange with the trial court judge: 

Defendant: I want to make this clear. I don’t want to have this [sic] as my 

counselor no longer. I’ve have [sic] had three counselors out of this Legal Aid 

Defenders firm, and neither one of them has represented me adequately, so I want 

to represent myself. 

The Court: You want a new lawyer? 

Defendant: No. I want to represent myself. 

The Court: I don’t want to let you do that. Number one, there are some serious 

issues here involving—well, you’ve got two capital offenses with which you are 

charged which could result in life imprisonment. 

Defendant: Okay, that’s fine. 

The Court: Well, it’s not fine. If you try to represent yourself you have a very 

strong likelihood of losing. 

Defendant: I’m willing to take that chance, sir. 

The Court: You don’t even have an understanding of what you’re facing. You 

know you do have—you are familiar somewhat with the criminal justice system. 

You’ve been incarcerated under, I think, another name. You’ve also used—you 

used both Terrence Banks and Wendell Banks? 

Defendant: Indeed. 

The Court: All right. The risk that you run in representing yourself are [sic] just 

too great. I don’t think—well, I don’t think you’re capable of representing 

yourself in a capital case first of all. Second, you need to have legal counsel. I’m 

not suppose to advise you as to how to proceed, but when you’re faced with these 

kind of changes (sic), you need legal counsel. 

Defendant: And that’s fine, sir. I’m a Moors National and we do have a treaty 

with the United States, therefore the counsel—I can have assistance through the 

counsel. 

The Court: For what counsel? 

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Defendant: From the embassy. 

The Court: Where were you born? 

Defendant: I was born in Michigan. 

The Court: All right. Well, I know your beliefs that you claim you are a citizen of 

somewhere else, but you have no diplomatic immunity, so you are subject to the 

laws of this jurisdiction. 

Defendant: But, I’m not a Fourteenth Amendment citizen neither. 

The Court: I’m not even going to try to debate that with you because what you’re 

saying is complete and utter nonsense. 

Defendant: Okay, sir. That’s fine. 

The Court: And you don’t even understand it, that’s why you need a lawyer. 

Defendant: Excuse me, sir. All I’m asking for is to appear in propria persona. 

That’s all I need for you to do is to grant me that. My risk of losing, that’s my 

risk. I feel like my risk is even greater with this public defender. 

The Court: All right. I can appoint someone from another office for you. But, you 

know, it’s going to be a complete disaster, I’m going to tell you, if you try to 

represent yourself. All this stuff about being a national and these treaties and all 

that, you need to get that out of your mind. 

Defendant: I’m willing to take the chance, sir. 

* * * 

The Court: All right. I have to appoint someone, a standby counsel. 

Defendant: I’m not taking no one. 

The Court: Listen to what I’m saying. You’re not even paying attention. You need 

to have a standby counsel. You can represent yourself, but you need to have a 

standby counsel, somebody to help you make objections with respect to the 

admission of evidence. And it would—well, you have to have at least a standby 

counsel. You can represent yourself, but you need standby counsel, somebody to 

help you make objections with respect to the admission of evidence. You have no 

background in that. You don’t even know the rules of evidence. And it would—

well, you have to have at least a standby counsel. You can represent yourself, but 

you need standby counsel for technical issues. All right. 

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Defendant: So, could you make it a matter of the Court record that I can have 

more library time over at the jail? 

The Court: No. I don’t control what goes on in the jail. That’s up to the sheriff. 

Defendant: You can make it a court order. 

The Court: No, it’s up to the sheriff. I don’t do that. There’s no provisions for me 

to order more library time for you. 

Defendant: Okay. 

(R. 11-4, PID 188–96.) Following this exchange, defendant was afforded the right to represent 

himself. 

On August 19, 2011, Petitioner argued two motions pro se, one challenging the trial 

court’s jurisdiction and the other a motion to dismiss based on procedural grounds. (R. 11-5, PID 

200.) The trial court denied both motions. On October 18, 2011, Petitioner appeared pro se at his 

pretrial hearing where he rejected the prosecutor’s plea offer. (R. 11-7, PID 276.) On December 

1, 2011, the first day of trial, Petitioner was removed as counsel because the trial court 

determined that his in-court conduct was “a disruption in the proceedings.” (R. 11-8, PID 303.) 

The trial court then appointed standby counsel to represent Petitioner for the remainder of the 

trial. (Id.) 

The Michigan Court of Appeals addressed Petitioner’s claims as follows: 

A. DEFENDANT’S WAIVER WAS UNEQUIVOCAL. 

In this case, during the waiver of counsel proceeding, defendant clearly informed 

the trial court that it was his desire to proceed without benefit of counsel. 

Defendant stated: ‘All I’m asking for is to appear in propria persona. That’s all I 

need for you to do is to grant me that. My risk of losing, that’s my risk. I feel like 

my risk is even greater with this public defender.’ Later in the proceeding, 

defendant clearly reaffirmed his waiver of counsel by stating to the trial court: 

‘I’m not taking no one.’ On this record, there is no question that defendant’s 

waiver of counsel was unequivocal. 

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B. DEFENDANT’S WAIVER WAS KNOWING, INTELLIGENT, AND 

VOLUNTARY. 

As previously quoted, the trial court informed defendant that he was facing a 

maximum sentence of life. The trial court warned defendant that his lack of 

knowledge of law, specifically the rules of evidence and how to make objections, 

would make self-representation a problem for defendant. The trial court pleaded 

with defendant to accept standby counsel to assist defendant in matters such as 

evidentiary issues. Defendant responded by indicating he was confident that he 

stood a better chance at trial by representing himself rather than request the trial 

court appoint new counsel. Thus, defendant was fully apprised of the risks he 

faced by choosing to represent himself and the record evidence clearly establishes 

that he knowingly and voluntarily chose to accept those risks. 

Banks, 2013 Mich. App. LEXIS 696, at *11–12. (The Michigan Court of Appeals also addressed 

the alleged state procedural errors; specifically, a violation of Mich. Ct. R. 6.005(D) and (E), that 

Petitioner raises in his amended petition. However, those claims are “not cognizable on federal 

habeas review unless the state court’s ruling was so fundamentally unfair that it amounted to a 

due process violation.” Hardaway v. Burt, 846 F.3d 191, 199 (6th Cir. 2017) (citing Estelle v. 

McGuire, 502 U.S. 62, 67 (1991)). Further, while Banks mentioned the issue of Mich. Ct. R. 

6.005 in his Petition, his brief is focused on the Sixth Amendment issue.) 

Petitioner first argues that the Court should review his waiver of counsel claims de novo

because the Michigan Court of Appeals did not address the federal constitutional claims that he 

raised. (R. 13, Page ID 873–75). A state court does not need to mention federal law in its 

decision to entitle its adjudication to deference under AEDPA. See Williams v. Curtin, 613 

F.App’x. 461, 463–65 (6th Cir 2015). “When a state court rejects a federal claim without 

expressly addressing that claim, a federal habeas court must presume that the federal claim was 

adjudicated on the merits” for purposes of invoking the AEDPA standard of review. Johnson v. 

Williams, 133 S. Ct. 1088, 1096 (2013). 

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In rejecting Petitioner’s claim, the Michigan Court of Appeals began by mentioning that 

“a waiver request must be unequivocal” and that the waiver had to be “knowingly, intelligently, 

and voluntarily made.” Banks, 2013 Mich. App. LEXIS 696, at *10. This language mirrors the 

federal constitutional requirement for a valid waiver of counsel. See Iowa v. Tovar, 541 U.S. 77, 

88 (2004). This Court concludes that Petitioner’s claim was adjudicated on the merits and thus, 

AEDPA’s deferential standard applies. 

The Supreme Court has held that a waiver of the Sixth Amendment right to counsel is 

valid only when it reflects “an intentional relinquishment or abandonment of a known right or 

privilege.” Patterson v. Illinois, 487 U.S. 285, 292 (1988) (quoting Johnson v. Zerbst, 304 U.S. 

458, 464 (1938)). A defendant’s waiver of his right to counsel must “be knowing, voluntary, and 

intelligent.” Tovar, 541 U.S. at 88. The waiver must be “done with sufficient awareness of the 

relevant circumstances.” Id. at 81 (internal quotation marks omitted). It is the criminal 

defendant’s burden to prove that he or she “did not competently and intelligently waive” his or 

her right to the assistance of counsel. Id. at 92. 

Before a criminal defendant waives his or her right to counsel, he or she “should be made 

aware of the dangers and disadvantages of self-representation,” so that the record establishes that 

the defendant knows what he or she “‘is doing and his choice is made with eyes open.’” Faretta 

v. California, 422 U.S. 806, 835 (1975) (quoting Adams v. United States ex rel. McCann, 317 

U.S. 269, 279 (1942)). The Supreme Court, however, has not “prescribed any formula or script 

to be read to a defendant who states that he elects to proceed without counsel.” Tovar, 541 U.S. 

at 88. The information that a criminal defendant must have in order to make an intelligent 

election “will depend on a range of case-specific factors, including the defendant’s education or 

sophistication, the complex or easily grasped nature of the charge, and the stage of the 

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proceeding.” Id. There is no clearly established federal law, as determined by the Supreme Court, 

which requires a specific colloquy to determine whether a defendant’s waiver of counsel was 

made with “eyes open.” Mack v. Holt, 62 F.App’x. 577, 580 (6th Cir. 2003); see also Sullivan v. 

Pitcher, 82 F.App’x. 162, 165 (6th Cir. 2003); United States v. McDowell, 814 F.2d 245, 248–49 

(6th Cir. 1987). 

Petitioner contends that the trial judge failed to warn him of the dangers of selfrepresentation before accepting his waiver. But the judge warned petitioner that his case involved 

“serious issues” and that he was charged with two capital offenses carrying up to life 

imprisonment. (R. 11-4, PID 190.) The judge warned petitioner that he had a “strong likelihood 

of losing” if he represented himself. (Id. at PID 190.) The judge told petitioner that he did not 

think he was capable of representing himself on a capital case. (Id.) The judge offered to appoint 

another attorney for petitioner and warned him that it would be a “complete disaster” for him to 

represent himself at trial. (Id. at PID 191.) In appointing standby counsel for petitioner, the judge 

explained to him that he did not know the rules of evidence and had no background in making 

objections. (Id. at 192.) The Michigan Court of Appeals’ rejection of this claim was thus 

reasonable. 

Petitioner next contends that the trial judge should have inquired into the level of 

petitioner’s background, age, education, and mental health before accepting the waiver. As noted 

above, there is no clearly established federal law concerning the scope of an inquiry by a trial 

judge prior to accepting a waiver. Although the judge did not specifically ask Petitioner about the 

extent of his educational background, the judge was obviously aware that Petitioner lacked a 

legal education and warned him that his lack of legal training would be a disadvantage. The 

judge also repeatedly told petitioner that he should continue to be represented by counsel. Under 

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the circumstances, it was not unreasonable for the Michigan Court of Appeals to conclude that 

Petitioner’s waiver was valid. See United States v. Clark, 591 F.App’x. 367, 372 (6th Cir. 2014). 

Moreover, in light of the fact that petitioner engaged in a clear and lucid colloquy with the judge, 

there was no reason for the judge to question petitioner’s mental competency to waive his right 

to counsel. Id. 

Petitioner next claims that his waiver was not voluntary because he was faced with the 

“Hobson’s Choice” between proceeding with incompetent counsel who was unprepared for trial 

or representing himself.1 The Sixth Circuit recently noted that the Supreme Court has yet to 

address such a claim: 

Because the Supreme Court has never confronted a situation in which a defendant 

decided to waive counsel due to his attorney’s lack of preparedness, we have 

doubts about whether any ‘clearly established’ Supreme Court law applies 

here. . . . Additionally, no Supreme Court precedent explains just how unprepared 

counsel must be before a court may deem a waiver of counsel to be involuntary, 

nor does any Supreme Court holding address the question whether a mistaken but 

reasonable belief that counsel is unprepared suffices to render a waiver of counsel 

involuntary. . . . 

Pouncy v. Palmer, 846 F.3d 144, 161 (6th Cir. 2017). The Court went on to explain that Iowa v. 

Tovar, 541 U.S. 77 (2004), Faretta v. Cal., 422 U.S. 806 (1975), and Johnson v. Zerbst, 304 U.S. 

458 (1938) could potentially support such a claim—but only if the petitioner could prove that 

“appointed counsel was actually incompetent.” Id. Similarly here, Petitioner argues that his 

waiver of counsel was invalid because his attorney was unprepared. Petitioner has not made any 

 

1

 It does not appear that Banks raised this particular argument before the Michigan Court 

of Appeals. (R. 11-12, PID 689–91.) However, Respondent has not argued that Banks failed to 

exhaust any of his claims. (R. 15, PID 904.) Moreover, the Court believes that this claim is 

“appropriately characterized as presenting not an independent claim, but rather emphasizing new 

evidence or argumentation in support of an old claim” and therefore the state-court’s rejection of 

it is entitled to AEDPA deference. Pouncy v. Palmer, 846 F.3d 144, 159 (6th Cir. 2017). 

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showing as to why his attorney was unprepared to proceed to trial, or that his attorney was 

incompetent. 

Finally, Petitioner argues that the judge did not obtain a right-to-counsel waiver at any of 

the post-July 11 hearings. However, a valid waiver of counsel “remains in effect at subsequent 

proceedings in the absence of an explicit revocation by the defendant or a change of 

circumstances that would suggest that the [trial] court should make a renewed inquiry of the 

defendant.” United States v. McBride, 362 F.3d 360, 367 (6th Cir. 2004); see also United States 

v. Modena, 302 F.3d 626, 630–31 (6th Cir. 2002). The Court already found that the Michigan 

Court of Appeals’ determination of a valid waiver was reasonable. Because there is no indication 

that petitioner ever revoked that waiver, or that there were a change of circumstances warranting 

revisiting the issue (see R. 13, PID 878), it was unnecessary for the judge to obtain a waiver of 

counsel from petitioner at any of his subsequent hearings. 

For these reasons, Petitioner is not entitled to habeas relief on his waiver of counsel 

claim. 

B.

Petitioner next claims that the Double Jeopardy clause was violated because the judge did 

not instruct the jury properly on the charge of assault with intent to commit murder and the lesser 

included offense of assault with intent to do great bodily harm less than murder, leading to a 

conviction on both charges. 

The Michigan Court of Appeals rejected this claim as follows: 

The trial court did not abuse its discretion or commit a double jeopardy violation 

by giving jury instructions for the charges of assault with intent to commit murder 

and assault with intent to do great bodily harm. In People v Cornell, 466 Mich 

335, 357; 646 NW2d 127 (2002), the Michigan Supreme Court held ‘that a 

requested instruction on a necessarily included lesser offense is proper if the 

charged greater offense requires the jury to find a disputed factual element that is 

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not part of the lesser included offense and a rational view of the evidence would 

support it.’ ‘The Cornell Court concluded that instructions on ‘cognate’ lesser 

offenses, which contain one element or some elements not found in the greater 

offense, are no longer permitted under MCL 768.32(1).’ People v Brown, 267 

Mich App 141, 146; 703 NW2d 230 (2005). The specific intent to do great bodily 

harm required to convict defendant of assault with intent to do great bodily harm, 

is different from the specific intent to kill that is required to sustain a conviction 

of assault with intent to commit murder. Id. 149–150. ‘Therefore, assault with 

intent to do great bodily harm less than murder is a necessarily included lesser 

offense of assault with intent to commit murder.’ Id.

As stated supra, assault with intent to do great bodily harm is a necessarily 

included lesser offense of assault with intent to commit murder. Therefore, 

defendant was not denied a fair trial because the trial court gave separate jury 

instructions for the charges of assault with intent to commit murder and assault 

with intent to do great bodily harm. The trial court listed the charges on the 

verdict form as listed under the felony information. In addition, the trial court 

stated, ‘The Court would interject itself if the defendant were found guilty of both 

the assault with intent to murder and great bodily harm[.]’ As a result, defendant 

was sentenced for his conviction of assault with intent to commit murder so that 

he would not be deprived of his double jeopardy rights. Finally, defendant’s 

double jeopardy claim is meritless because the trial court vacated his assault with 

intent to do great bodily harm sentence. Thus, there is no violation of defendant’s 

constitutional right against double jeopardy. 

Banks, 2013 Mich. App. LEXIS 696 at *17–19 . 

Applying AEDPA deference, the Court will not disturb the Court of Appeals’ 

determination. It appears that upon sentencing, the trial judge addressed the double jeopardy 

issue as follows: “The second charge, assault with intent to commit great bodily harm less than 

murder, you will be sentenced as a fourth habitual offender to a minimum of twenty, to a 

maximum of forty years in the Michigan Department of Corrections. However, because that 

conviction was based on the exact same factual occurrence and circumstances as the assault with 

intent to murder, I will vacate that sentence on the second charge.” (R. 11-1, PID 650.) Thus, the 

trial judge vacated sentence on the lesser-included offense, but it does not appear that the trial 

judge vacated the conviction. (See also R. 11-1, PID 123 (reflecting conviction on both assault 

with intent to murder and assault to do great bodily harm less than murder).) 

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The double jeopardy clause “affords three protections to the criminal defendant. The first 

two, which are the most familiar, protect against a second prosecution for the same offense after 

acquittal, and against a second prosecution for the same offense after conviction.” Jones v. 

Thomas, 491 U.S. 376, 380–81 (1989) (citing Ohio v. Johnson, 467 U.S. 493, 498 (1984)). The 

third, which applies here, is “the protection against ‘multiple punishments for the same offense’ 

imposed in a single proceeding.” Id. (citing North Carolina v. Pearce, 395 U.S. 711, 717 

(1969)). This third protection does “no more than prevent the sentencing court from prescribing 

greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). 

Therefore, by vacating the sentence on the lesser-included offense, the trial judge achieved the 

protection afforded by the double jeopardy clause with respect to Banks’s sentence. See Jones, 

491 U.S. at 382. 

But in Jones, the petitioner’s conviction on the other offense had also been vacated. Id.

Banks’s was not. In Ball v. United States, 470 U.S. 856, 865 (1985), the Supreme Court 

explained that a “second conviction, even if it results in no greater sentence, is an impermissible 

punishment.” This is because a conviction creates “potential adverse collateral consequences that 

may not be ignored[.]” Id. Thus, in the ineffective-assistance-of-counsel context, the Sixth 

Circuit has held that a petitioner could show prejudice based on his counsel’s failure to challenge 

a conviction on double-jeopardy grounds—“That the trial court imposed concurrent sentences 

for [petitioner’s] convictions does not eliminate the prejudice that he may suffer as a result of an 

erroneous conviction and sentence.” Shinholster v. Bradshaw, No. 14-3026, 2014 U.S. App. 

LEXIS 24993, at *6 (6th Cir. Nov. 26, 2014). Indeed, the Supreme Court has stated, “Under 

Ball, the collateral consequences of a second conviction make it as presumptively impermissible 

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to impose as it would be to impose any other unauthorized cumulative sentence.” Rutledge v. 

United States, 517 U.S. 292, 302 (1996). 

However, it does not appear that Petitioner is raising a claim pursuant to Rutledge—he is 

only concerned with his “sentence.” (R. 13, PID 880.) As noted above, the Court of Appeals’ 

determination was reasonable as to the trial court’s decision to impose sentence for the greater, 

but not the lesser, offense. Even if Petitioner were seeking to vacate his conviction, federal courts 

have declined to apply Ball as “clearly established” Supreme Court case law on habeas review. 

See, e.g., Tavarez v. Larkin, 814, F.3d 644, 649 (2d Cir. 2016). Further, the “concurrent 

sentence” doctrine might also bar this claim as moot—given Banks’s 40-year minimum sentence 

on the assault with intent to commit murder conviction, any collateral consequences from the 

intent-to-commit-great-bodily-harm conviction are speculative. See Benton v. Maryland, 395 

U.S. 784 (1969); Nowakowski v. New York, 835 F.3d 210, 225 (2d Cir. 2016). 

Accordingly, Petitioner is not entitled to habeas relief for this claim. 

C.

Petitioner next claims that his Sixth Amendment right to confrontation was violated when 

the victim was permitted to conceal his identity while testifying at the preliminary examination. 

The preliminary examination occurred on May 13, 2011. (R. 11-2.) At that time, because Mayen 

“ha[d] some fear of retaliation,” the trial court granted the prosecution’s request to allow him to 

testify with a hood over his head. (Id. at PID 135.) The Michigan Court of Appeals addressed 

this claim under plain-error review as follows: 

Defendant has failed to demonstrate that the trial court violated his constitutional 

right to confront an accusatory witness by allowing the victim to wear a hood 

during defendant’s preliminary examination. Considering the facts, it was 

reasonable for the victim to feel ‘some fear of retaliation’ after the allegations of 

defendant’s gun violence. Therefore, it was not unreasonable for the court to 

allow the victim to testify with a hood. In addition, defendant has failed to 

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demonstrate that he was not afforded the right to confront the victim during his 

preliminary examination testimony. The victim was cross-examined, under oath, 

in the presence of defendant by defense counsel at the preliminary examination. 

Also, there is no evidence that the court was unable to observe the victim’s 

demeanor. Therefore, defendant’s argument is without merit. 

Banks, 2013 Mich. App. LEXIS 696, at *19–20. 

Assuming de novo review, Petitioner is not entitled to relief on this claim. See Trimble v. 

Bobby, 804 F.3d 767, 777 (6th Cir. 2015) (highlighting Sixth Circuit case law inconsistencies on 

whether plain error review amounts to a decision on the merits warranting AEDPA deference 

instead of de novo review). 

The confrontation clause is satisfied when the witness testifies at trial and is subject to 

unrestricted cross-examination. United States v. Owens, 484 U.S. 554, 560 (1988); see also 

Crawford v. Washington, 541 U.S. 36, 59, n. 9 (2004); U.S. v. Mayberry, 540 F.3d 506, 516 (6th 

Cir. 2008). Also, “the United States Supreme Court has repeatedly stated that the right to 

confrontation is basically a trial right.” Peterson v. California, 604 F.3d 1166, 1169 (9th Cir. 

2010) (citing cases). Thus, there is extensive case law declining to apply the confrontation right 

to “various pre-and post-trial proceedings,” including preliminary examinations. United States v. 

Mitchell-Hunter, 663 F.3d 45, 51 (1st Cir. 2011) (collecting cases). And Crawford v. 

Washington, 541 U.S. 36 (2004) and its progeny do not alter these holdings because those cases 

arose in the “context of trial.” Mitchell-Hunter, 663 F.3d at 51. 

Here, it is undisputed that Mayen testified at trial without the hood, and Petitioner’s 

counsel was able to cross-examine him at that time. Petitioner’s counsel was able to elicit that 

Mayen had worked a fifteen hour day on the day of the shooting and question Mayen’s 

recollection of how many shots were fired. (R. 11-9, PID 529–37.) Moreover, even at the 

preliminary hearing, Petitioner’s counsel was able to cross-examine Mayen even though he was 

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wearing the hood, and Mayen identified himself by name at that time. The Court does not discern 

a confrontation clause violation where a witness states his name publicly but conceals his face 

during a preliminary examination, and then testifies without disguise during trial, and counsel 

has the opportunity to cross-examine the witness in both instances. 

Petitioner also claims that allowing the victim to wear a hood was a Brady violation 

because it interfered with the prosecution’s purported duty to “ensure that the identity of the 

alleged victim is known to the defendant.” (R. 11-12, PID 726.) Because it appears that the 

Michigan Court of Appeals did not address this Brady issue, the Court will apply de novo 

review. 

A Brady violation involves three components: (1) the evidence at issue must be favorable 

to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must 

have been suppressed by the state, either willfully or inadvertently; and (3) prejudice must have 

ensued. Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Mayen’s identity was not suppressed 

by the state—he stated his name for the record. (R. 11-2, PID 136.) And given that the victim 

testified without a hood at trial, there was no prejudice to Petitioner. In sum, Petitioner was on 

notice as to Mayen’s identity because Mayen identified himself for the record at the preliminary 

examination, Mayen testified without the hood at trial, and there is no indication that anything 

about the trial prevented a full cross-examination. See Maglaya v. Buchkoe, 515 F.2d 265, 269 

(6th Cir. 1975). 

For these reasons, Petitioner is not entitled to habeas relief on his claims arising from 

Mayen wearing a hood at the preliminary examination.

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D.

Petitioner also claims that his attorney was ineffective because he only met with 

Petitioner for a few minutes prior to the preliminary examination, and failed to object to the 

concealment of Mayen’s face. 

The Michigan Court of Appeals addressed this claim as follows: 

First, as stated supra, permitting the victim to wear a hood during the preliminary 

examination did not deprive defendant of his right to confront the prosecution’s 

witness. Therefore, defense counsel was not obligated to raise a futile objection. 

See Ericksen, 288 Mich App at 201. In addition, defendant has failed to show that 

trial counsel’s failure to meet with defendant minutes before the preliminary 

examination, and counsel’s alleged failure to inform defendant of victim’s 

intention to wear a hood during the preliminary examination, would have changed 

the result of the proceeding. See Russell, Mich App at (slip op at 1) (stating that a 

defendant must show that, but for counsel’s deficient performance, a different 

result would have been reasonably probable). There is no indication that trial 

counsel habitually met with defendant only minutes prior to any other hearings. 

More importantly, there is no record evidence to determine if, in fact, defendant’s 

allegations are true. Therefore, defendant’s claims of ineffective assistance of 

counsel are without merit. 

Banks, 2013 Mich. App. LEXIS 696 at *22–23. “An ineffective assistance claim has two 

components: A petitioner must show that counsel’s performance was deficient, and that the 

deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing 

Strickland v. Washington, 466 U.S. 668, 687 (1984)). 

To succeed on the performance prong, Petitioner must identify acts that were “outside the 

wide range of professionally competent assistance.” Strickland, 466 U.S. at 690; see Cullen v. 

Pinholster, 131 S. Ct. 1388, 1407 (2011). To satisfy the prejudice prong, Petitioner must show 

that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different.” Strickland, 466 U.S. at 694. A reasonable probability 

is one that is “sufficient to undermine confidence in the outcome.” Id. 

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“When a state prisoner asks a federal court to set aside a sentence due to ineffective 

assistance of counsel,” and a state court has already rejected the ineffective-assistance claim “on 

the merits” as here, Supreme Court precedent “require[s] that the federal court use a ‘doubly 

deferential’ standard of review that gives both the state court and the defense attorney the benefit 

of the doubt.” Burt v. Titlow, 134 S. Ct. 10, 13 (2013); accord Harrington v. Richter, 562 U.S. 

86, 105 (2011) (“The standards created by Strickland and [section] 2254(d) are both ‘highly 

deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” (internal citation 

omitted)). However, “When a state court relied only on one Strickland prong to adjudicate an 

ineffective assistance of counsel claim, AEDPA deference does not apply to review of the 

Strickland prong not relied upon by the state court. The unadjudicated prong is reviewed de 

novo.” Rayner v. Mills, 685 F.3d 631, 638 (6th Cir. 2012). 

Given that Mayen ultimately testified without the hood at trial, and given the other 

overwhelming evidence of guilt in this case, the Michigan Court of Appeals reasonably 

determined that even if counsel had objected, there was no reasonable probability that the 

outcome of the proceeding would have been different. That is to say, the Michigan Court of 

Appeals reasonably determined that there was no prejudice to Petitioner arising out of counsel’s 

allegedly deficient performance. 

Petitioner is not entitled to habeas relief on this claim. 

E.

Petitioner’s last claim is that he was denied a fair trial due to prosecutorial misconduct. 

The Michigan Court of Appeals addressed this claim as follows: 

The prosecutor did not commit prosecutorial misconduct when he asserted that 

the jury could decide whether the victim’s testimony was credible. . . . . 

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Defendant mischaracterizes the prosecutor’s statement during his closing 

argument. Defendant argues, ‘The prosecution asserted the testimony of [the 

victim] was ‘The Truth’, and that no further testimony would have been needed.’ 

During closing argument, the prosecutor stated, ‘And to be honest, this trial could 

have been shorter. I could have stopped right there because as the trier of the fact, 

if you believe the testimony of [the victim], that’s enough. That’s the truth. You 

decide what happened. So if you believe his testimony then that was enough.’ The 

prosecutor’s statement did not reference that the victim’s testimony was ‘The 

Truth,’ but argued that his testimony provided sufficient evidence of defendant’s 

guilt if the jury found the victim to be credible. The prosecutor commented on the 

credibility of the victim, which is proper because the victim was the prosecution’s 

witness. See Thomas, 260 Mich App 455. Therefore, defendant has failed to 

demonstrate that the prosecutor attempted to place the credibility of his office 

behind the case or suggest that he possessed extrajudicial information. See Reed, 

449 Mich at 399. Thus, defendant’s prosecutorial misconduct argument is without 

merit. 

Banks, 2013 Mich. App. LEXIS 696, at *23–25. 

“Claims of prosecutorial misconduct are reviewed deferentially on habeas review.”

Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344 F.3d 487, 

512 (6th Cir. 2003)). A prosecutor’s improper comments will be held to violate a criminal 

defendant’s constitutional rights only if they “‘so infected the trial with unfairness as to make the 

resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) 

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will 

thus form the basis for habeas relief only if the conduct was so egregious as to render the entire 

trial fundamentally unfair based on the totality of the circumstances. Donnelly v. DeChristoforo, 

416 U.S. at 643–45. Because the Michigan Court of Appeals decided the prosecutorial 

misconduct claim on the merits, Petitioner must show that the state court’s rejection of his claim 

“was so lacking in justification that there was an error well understood and comprehended in 

existing law beyond any possibility for fairminded disagreement.” Parker v. Matthews, 132 S. 

Ct. 2148, 2155 (2012) (quoting Harrington, 562 U.S. at 103). 

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The Michigan Court of Appeals’ rejection of the prosecutorial-misconduct claim was 

reasonable. The prosecutor did not argue that he had any special knowledge about the victim that 

had not been presented to the jury. There was no improper vouching because the prosecutor did 

not improperly “assert or imply that he drew from anything but [the victim’s] trial testimony to 

argue that [he] was credible.” Cockream v. Jones, 382 F.App’x. 479, 485 (6th Cir. 2010). Indeed, 

the prosecutor did even not go so far as to tell the jury they should believe Mayen—he merely 

stated that if the jury credited Mayen’s testimony, that would be enough to convict. Again, he 

stated: “And to be honest, this trial could have been shorter, I could have stopped right there 

[after Mayen’s testimony] because as the triers of fact, if you believe the testimony of Mr. 

Mayen, that’s enough. That’s the truth. You decide what happened. So if you believe his 

testimony, then that was enough.” (R. 11-10, PID 591.) The prosecutor went on to point out that 

there were “a number of people that are backing up the testimony of Mr. Mayen[.]” (Id. at PID 

592.) Accordingly, the prosecutor merely argued that the record evidence supported Mayen’s 

account of what happened, and that if the jury believed that account, they should find Petitioner 

guilty. 

Petitioner also argues that the prosecutor committed a fraud upon the court by falsely 

representing to the examining magistrate that the victim had medical complications that 

prevented him from attending the preliminary examination and that on one occasion he was too 

fearful to testify, thus leading to three adjournments of the preliminary examination. 

The Michigan Court of Appeals declined to address this claim on direct review: 

Defendant also argues that the prosecutor misrepresented the facts concerning the 

victim’s availability for the preliminary examination, and thus, the trial court did 

not have good cause to adjourn the preliminary examination three separate times. 

The Michigan Supreme Court has held that ‘a defendant must raise the issue of a 

twelve-day rule violation immediately before the commencement of the 

preliminary examination. Failure to raise the issue waives appellate review on the 

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question.’ People v Crawford, 429 Mich 151, 168; 414 NW2d 360 (1987). 

Defendant failed to raise this issue immediately before the commencement of the 

preliminary examination. Therefore, the issue is waived. 

Banks, 2013 Mich. App. LEXIS 696, at *25. Accordingly, Respondent argues that this claim has 

been procedurally defaulted. (R. 15, PID 975.) 

Even if the Court were to find that the claim was not procedurally defaulted pursuant to 

Henderson v. Palmer, 730 F.3d 554, 559 (6th Cir. 2013), habeas relief would not be warranted. 

Petitioner claims that he “had the records to prove” that “the statements offered by the 

prosecution were clear and utter falsehood.” (R. 13, Page ID 886). However, petitioner did not 

provide those records to the Michigan Court of Appeals as part of his Rule 4 Supplemental Brief 

on Appeal, nor has he provided them to this Court. Habeas relief will not be granted based on 

conclusory allegations of prosecutorial misconduct. See Johnson v. Renico, 314 F. Supp. 2d 700, 

710 (E.D. Mich. 2004). Because petitioner’s second prosecutorial misconduct claim is 

unsupported, he is not entitled to habeas relief. 

IV.

For the reasons set forth above, the Court will not grant Banks the relief requested in his 

amended petition. The Court also believes that no reasonable jurist would find that Banks’s 

claims have merit, so a certificate of appealability will not issue from this Court. See Slack v. 

McDaniel, 529 U.S. 473, 483–84 (2000). But if Banks nonetheless chooses to appeal, he may 

proceed in forma pauperis. See 28 U.S.C. § 1915(a)(3). 

Accordingly, IT IS ORDERED the Petition for Writ of Habeas Corpus (R. 13) is 

DENIED. 

It is further ORDERED that a Certificate of Appealability is DENIED. 

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It is further ORDERED that Walker may proceed in forma pauperis on appeal. 

SO ORDERED. 

 s/Laurie J. Michelson 

 LAURIE J. MICHELSON 

Dated: July 15, 2017 U.S. DISTRICT JUDGE 

CERTIFICATE OF SERVICE

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

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

U.S. mail addresses disclosed on the Notice of Electronic Filing on July 15, 2017. 

s/Keisha Jackson 

Case Manager 

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