UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

NELSON OLWALDO MENDOZA,

Petitioner,

v. Case No. 14-13027

DEWAYNE BURTON,

Respondent.

 /

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS

AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Michigan prisoner Nelson Olwaldo Mendoza has filed a pro se petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for two

counts of first-degree murder, Mich. Comp. Laws § 750.316, and one count of

conspiracy to commit murder, Mich. Comp. Laws § 750.157a, which were imposed

following a jury trial in the Oakland County Circuit Court in 2009. Petitioner was

sentenced to three concurrent terms of life imprisonment. In his pleadings, he raises

claims concerning the sufficiency of the evidence, the legality of a vehicle search, and

the effectiveness of trial and appellate counsel. Respondent contends that the habeas

petition should be denied. For the reasons set forth, the court denies the petition and

denies a certificate of appealability.

I. BACKGROUND

Petitioner’s convictions arise from the shooting deaths of a married couple at

their home in Troy, Michigan as part of a murder-for-hire plan on March 11, 2008. 

Petitioner and Miguel Servando traveled together from Texas to Michigan to commit the

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crime. The Michigan Court of Appeals summarized the relevant facts, which are

presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581

F.3d 410, 413 (6th Cir. 2009), as follows:

Defendant's convictions arise from the murder-for-hire killings of a married

couple, Aasha and Brij Chhabra, at their home in Troy, Michigan, on

March 11, 2008. The testimony at trial established that Miguel Servando

traveled from Texas to Michigan to commit the murders in exchange for

$30,000 from Narayan Thadani, who had allegedly embezzled Aasha

Chhabra's money, and that Servando alone entered the Chhabras' house

and shot both victims in the head. Servando pleaded guilty to two counts

of first-degree murder, conspiracy to commit murder, and two counts of

possession of a firearm during the commission of a felony. He tendered

his pleas pursuant to a plea agreement whereby he was allowed to serve

his life sentences in a federal prison and federal authorities agreed not to

seek the death penalty against him if he was prosecuted for any federal

offenses arising from the Chhabras' homicides. Servando also agreed to

testify against defendant.

At trial, Servando testified that defendant was aware of the murder-for-hire

plan, agreed to participate, and accompanied Servando from Texas to

Michigan to carry out the plan. Servando testified that defendant drove

him to the Chhabras' house, and then waited at a nearby gas station while

Servando shot the victims inside their home. After committing the offense,

Servando and defendant began to drive back to Texas, but were detained

in a traffic stop in Taylor, Michigan. Police officers discovered Servando's

gun in the car, and then later discovered a blood-stained envelope, a

blood-stained latex glove, a photocopy of Aasha Chhabra's passport, a

diagram of the Chhabras' house, and documents listing the Chhabras'

names and directions to their house.

People v. Mendoza, No. 288509, 2010 WL 481001, *1 (Mich. Ct. App. Feb. 11, 2010)

(unpublished). Respondent has also provided a thorough summary of the trial

testimony, see Resp. Answer, pp. 5-20, which the court adopts to the extent that it is

consistent with the state court record.

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

the Michigan Court of Appeals raising claims concerning the sufficiency of the evidence,

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the great weight of the evidence, and the effectiveness of trial counsel for failing to

object to the prosecutor’s use of leading questions and for failing to investigate and

present witnesses. The Michigan Court of Appeals denied relief on those claims and

affirmed Petitioner’s convictions. Mendoza, 2010 WL 481001 at *1-5. Petitioner filed an

application for leave to appeal with the Michigan Supreme Court, which was denied in a

standard order. People v. Mendoza, 487 Mich. 854, 784 N.W.2d 214 (2010).

Petitioner then filed an initial federal habeas petition raising claims concerning

the sufficiency of the evidence, the effectiveness of trial counsel, the legality of the

vehicle search, and the confrontation of a witness. The court found that the petition

contained claims which had not been exhausted in the state courts and dismissed it

without prejudice. Mendoza v. Scutt, No. 2:10-CV-15157 (E.D. Mich. Jan. 11, 2011).

Petitioner returned to the state trial court and filed a motion and supplemental

motion for relief from judgment raising claims concerning an alleged closure of the

courtroom during jury selection and the effectiveness of trial counsel for failing to object,

the sufficiency of the evidence as to venue, the legality of the police search of the

vehicle, his right to confrontation, the effectiveness of trial counsel for failing to properly

advise him about testifying/not testifying at trial, and the effectiveness of appellate

counsel. The trial court denied relief on those claims finding that Petitioner failed to

demonstrate cause and prejudice under Michigan Court Rule 6.508(D)(3) and finding

that the claims lacked merit. People v. Mendoza, No. 08-220070-FC (Oakland Cir. Ct.

Feb. 21, 2013). Petitioner filed a delayed application for leave to appeal with the

Michigan Court of Appeals, which was denied for lack of merit. People v. Mendoza, No.

317767 (Mich. Ct. App. Oct. 16, 2013). Petitioner also filed an application for leave to

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appeal with the Michigan Supreme Court, which was denied “for failure to meet the

burden of establishing entitlement to relief under MCR 6.508(D).” People v. Mendoza,

495 Mich. 1005, 846 N.W.2d 554 (2014).

Petitioner thereafter filed his current federal habeas petition. He raises the

following claims:

I. His constitutional rights were violated when the prosecutor

presented insufficient evidence to support guilt beyond a

reasonable doubt in violation of his state and federal constitutional

rights to a fair trial.

II. He was denied the effective assistance of counsel when counsel

failed to present witnesses or investigate Mr. Servando’s

statements and counsel was unprepared for trial, which denied him

a fair trial.

III. The search of the vehicle he was driving was not consensual as he

does not understand English well, which violated the Fourth

Amendment, and thus the fruits seized must be dismissed as fruits

of the poisonous tree.

IV. Trial counsel was ineffective for failing to advise him that

without his testimony there would be no evidence to

contradict the testimony against him.

V. Appellate counsel was ineffective for failing to raise the issue of

ineffective assistance of trial counsel for advising him not to testify.

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

because it is untimely, two of the claims are procedurally defaulted, and all of the claims

lack merit.

II. STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified

28 U.S.C. § 2241 et seq., provides the standard of review for federal habeas cases

brought by state prisoners. The AEDPA provides in relevant part:

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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.

28 U.S.C. §2254(d) (1996).

“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a

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

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

Supreme] Court and nevertheless arrives at a result different from [that] precedent.’” 

Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,

529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas

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

from [the Supreme] Court but unreasonably applies that principle to the facts of

petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529

U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court to

find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state

court’s decision must have been more than incorrect or erroneous. The state court’s

application must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21

(citations omitted); see also Williams, 529 U.S. at 409. “AEDPA thus imposes a ‘highly

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

decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010)

(quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per

curiam)).

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)). The Supreme Court has emphasized “that even

a strong case for relief does not mean the state court's contrary conclusion was

unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to

§ 2254(d), “a habeas court must determine what arguments or theories supported or ...

could have supported, the state court's decision; and then it must ask whether it is

possible fairminded jurists could disagree that those arguments or theories are

inconsistent with the holding in a prior decision" of the Supreme Court. Id. Thus, in

order to obtain habeas relief in federal court, a state prisoner must show that the state

court's rejection of his claim "was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Id; see also White v. Woodall, 134 S. Ct. 1697, 1702 (2014). Federal

judges “are required to afford state courts due respect by overturning their decisions

only when there could be no reasonable dispute that they were wrong.” Woods v.

Donald, 135 S. Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long as it

is within the “realm of possibility” that fairminded jurists could find the state court

decision to be reasonable. Woods v. Etherton, _ U.S. _, 136 S. Ct. 1149, 1152 (2016).

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

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

determined by the Supreme Court at the time the state court renders its decision. 

Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)

(stating that the Supreme Court “has held on numerous occasions that it is not ‘an

unreasonable application of clearly established Federal law’ for a state court to decline

to apply a specific legal rule that has not been squarely established by this Court”)

(quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer, 538

U.S. at 71-72. Section 2254(d) “does not require a state court to give reasons before

its decision can be deemed to have been ‘adjudicated on the merits.’” Harrington, 562

U.S. at 100. Furthermore, it “does not require citation of [Supreme Court]

cases—indeed, it does not even require awareness of [Supreme Court] cases, so long

as neither the reasoning nor the result of the state-court decision contradicts them.” 

Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. While the

requirements of “clearly established law” are to be determined solely by Supreme Court

precedent, the decisions of lower federal courts may be useful in assessing the

reasonableness of a state court’s resolution of an issue. Stewart v. Erwin, 503 F.3d

488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir.

2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).

Lastly, a state court’s factual determinations are presumed correct on federal

habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption

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

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1998). Moreover, habeas review is “limited to the record that was before the state

court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

III. DISCUSSION

A. Statute of Limitations

As an initial matter, Respondent contends that the petition should be dismissed

as untimely under the one-year statute of limitations applicable to federal habeas

actions. See 28 U.S.C. § 2244(d). Respondent’s argument relies upon his assertion

that Petitioner’s motion for relief from judgment was filed in the state trial court on

February 10, 2012 – 91 days after the one-year period expired. The record, however,

belies Respondent’s assertion. Petitioner dated his motion on August 29, 2011, but it

was not filed by the state trial court until February 10, 2012. The state trial court

recognized this discrepancy and found that was due to a clerical error as the motion

was received by the clerk on or about September 1, 2011. The state trial court ordered

that the motion “be treated as though it was received and filed on September 1, 2011,

for all purposes.” People v. Mendoza, Case No. 2008-220070-FC (Oakland Co. Cir.

Ct. July 23, 2012). Given that Petitioner’s motion for relief from judgment is deemed

filed on September 1, 2011, Respondent’s contention that the petition is untimely fails.

B. Procedural Default

Respondent also contends that two of Petitioner’s habeas claims are barred by

procedural default. It is well-settled, however, that federal courts on habeas review

“are not required to address a procedural-default issue before deciding against the

petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing

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Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). The United States Supreme Court

has explained the rationale behind such a policy: “Judicial economy might counsel

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

habeas petitioner, whereas the procedural-bar issue involved complicated issues of

state law.” Lambrix, 520 U.S. at 525. In this case, the procedural issue is intertwined

with the merits of Petitioner’s issues and the substantive issues are simpler to resolve. 

Accordingly, the Court shall proceed to the merits of Petitioner’s claims. 

C. Merits

1. Insufficient Evidence Claim

Petitioner first asserts that he is entitled to habeas relief because the prosecutor

failed to present sufficient evidence to support his convictions. In particular, he argues

that the prosecution failed to show that he killed or intended to kill the victims where

Mr. Servado confessed to shooting the victims, the physical evidence recovered from

the car did not personally link him to the shootings, and there was no evidence that he

was paid for assisting Mr. Servado.

The federal due process clause “protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact necessary to constitute the crime

with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The question on a

sufficiency of the evidence claim is “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979). A federal habeas court views this standard through the

framework of 28 U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir.

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2002). Thus, under the AEDPA, challenges to the sufficiency of the evidence “must

survive two layers of deference to groups who might view facts differently” than a

reviewing court on habeas review – the factfinder at trial and the state court on

appellate review – as long as those determinations are reasonable. Brown v. Konteh,

567 F.3d 191, 205 (6th Cir. 2009). Furthermore, the Jackson standard must be applied

“with explicit reference to the substantive elements of the criminal offense as defined

by state law.” Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson,

443 U.S. at 324 n. 16). “A reviewing court does not re-weigh the evidence or

re-determine the credibility of the witnesses whose demeanor has been observed by

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

Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). The “mere existence of sufficient

evidence to convict . . . defeats a petitioner's claim.” Matthews, 319 F.3d at 788-89.

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

defendant intentionally killed the victim and that the killing was premeditated and

deliberate. People v. Kelly, 231 Mich. App. 627, 642, 588 N.W.2d 480 (1998); MICH.

COMP. LAWS § 750.316. Premeditation and deliberation may be established by

evidence showing: “(1) the prior relationship of the parties; (2) the defendant’s actions

before the killing; (3) the circumstances of the killing itself; and (4) the defendant’s

conduct after the homicide.” People v. Schollaert, 194 Mich. App. 158, 170, 486

N.W.2d 312 (1992); see also People v. Abraham, 234 Mich. App. 640, 656, 599

N.W.2d 736 (1999). The prosecution must prove beyond a reasonable doubt that the

defendant committed the charged offense. People v. Kern, 6 Mich. App. 406, 409, 149

N.W.2d 216 (1967). Direct or circumstantial evidence and reasonable inferences

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arising from that evidence may constitute satisfactory proof of the elements of an

offense, People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993), including the

identity of the perpetrator, Kern, 6 Mich. App. at 409; see also People v. Johnson, 146

Mich. App. 429, 434, 381 N.W.2d 740 (1985), and the defendant’s intent or state of

mind. People v. Dumas, 454 Mich. 390, 398, 563 N.W.2d 31 (1997); see also People

v. Nowack, 462 Mich. 392, 402-03, 614 N.W.2d 78 (2000).

To convict a defendant under an aiding and abetting theory, the prosecution

must establish that the crime was committed by the defendant or some other person,

that the defendant performed acts or gave encouragement that aided or assisted in the

commission of the crime, and that the defendant either intended to commit the crime or

knew that the principal intended to commit the crime at the time he or she gave the aid

or encouragement. People v. Carines, 460 Mich. 750, 757-58, 597 N.W.2d 130 (1999);

see also People v. Moore, 470 Mich. 56, 679 N.W.2d 41 (2004); MICH. COMP. LAWS §

767.39. An aider and abettor’s state of mind may be inferred from all the facts and

circumstances, including a close association between the defendant and the principal,

the defendant’s participation in the planning or execution of the crime, and evidence of

flight after the crime. Carines, 460 Mich. at 757-58.

A conspiracy under Michigan law involves the mutual agreement or

understanding, express or implied, between two or more persons to commit a criminal

act or a legal act by unlawful means. People v. Anderson, 418 Mich. 31, 36, 340

N.W.2d 634 (1983); MICH. COMP. LAWS § 750.157a. Conspiracy may be established by

circumstantial evidence and may be based on inference. People v. McKenzie, 206

Mich. App. 425, 428, 522 N.W.2d 661 (1994). Direct proof of agreement is not

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required, nor is it necessary that a formal agreement be proven. It is sufficient if the

circumstances, acts, and conduct of the parties establish an agreement in fact. People

v. Justice (after remand), 454 Mich. 334, 347, 562 N.W.2d 652 (1997).

Applying the Jackson standard, as well as the foregoing state law principles, the

Michigan Court of Appeals denied relief on this claim on direct appeal. The court

explained in relevant part:

Here, the testimony at trial indicated that defendant assisted Servando in

committing the offenses by driving Servando to the Chhabras' house and

then waiting nearby while Servando went inside and shot both victims.

Moreover, the evidence showed that defendant was aware of Servando's

intent to murder both victims when he drove Servando to their house.

Servando testified that he first learned of Thadani's plan to kill the

Chhabras when defendant informed him that Douglas Tobar, an

associate of Thadani, was looking for someone to kill two persons in

Michigan. Although defendant was not involved in the meetings in which

Servando, Tobar, and Thadani planned the killings, Servando testified

that defendant persuaded him to allow defendant to accompany

Servando to Michigan, knowing that Servando was going there to kill two

people. Servando testified that he and defendant discussed the

murder-for-hire plan during their drive to Michigan, and that defendant

was present when Servando openly discussed this plan with a Michigan

acquaintance, Eduardo Hernandez. Hernandez corroborated Servando's

testimony that defendant was present when Servando admitted his true

purpose in coming to Michigan. Hernandez also testified that he tried to

dissuade defendant from following through with the plan, and that

defendant made comments such as, “I've got [Servando's] back” and “I'm

not gonna let this guy down.” 

The evidence was sufficient to enable the jury to find beyond a

reasonable doubt that defendant conspired with Servando to kill the

Chhabras, and that defendant participated in the crime knowing that

Servando possessed the specific intent to murder them. Although

defendant argues that there are alternative ways of viewing the evidence

consistent with his innocence, we are required to view the evidence in a

light most favorable to the prosecution and to resolve all conflicts in the

evidence in favor of the prosecution. Fletcher, 260 Mich. App. at 561-562,

679 N.W.2d 127. Similarly, the credibility of the witnesses was for the jury

to resolve and this Court must defer to the jury's credibility

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determinations. Nowack, 462 Mich. at 400, 614 N.W.2d 78. Viewed in this

manner, the evidence was sufficient to support defendant's convictions.

Mendoza, 2010 WL 481001 at *2-3.

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

unreasonable application of federal law or the facts. The trial testimony from codefendant Miguel Servando and witness Eduardo Hernandez regarding the murder-for

hire-plan and Petitioner’s involvement in that plan, along with the fact that Petitioner

accompanied Servando from Texas to Michigan and was driving the vehicle when they

were stopped by police with the gun and other incriminating evidence of the crime,

provided sufficient evidence to support Petitioner’s first-degree murder and conspiracy

convictions.

Petitioner challenges the jury’s evaluation of the evidence at trial and the

inferences that the jury drew from that evidence. However, it is the job of the

fact-finder at trial, not a federal habeas court, to resolve evidentiary conflicts. Jackson,

443 U.S. at 326; Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002); see also Walker

v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) (“A federal habeas corpus court faced

with a record of historical facts that supports conflicting inferences must presume -

even if it does not affirmatively appear in the record - that the trier of fact resolved any

such conflicts in favor of the prosecution, and must defer to that resolution.”). The

jury’s verdict, and the Michigan Court of Appeals’ decision affirming that verdict, were

reasonable. Habeas relief is not warranted on this claim.

2. Ineffective Assistance of Counsel Claims

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Petitioner also asserts that he is entitled to habeas relief because trial counsel

was ineffective. First, he asserts that counsel was ineffective for failing to investigate

how he was contacted by Mr. Servando and for failing to speak with potential

witnesses, such as Mr. Servando’s wife, with whom Petitioner spoke before meeting

Mr. Servando. Petitioner claims that such investigation and witnesses would have

shown inconsistencies in Mr. Servando’s testimony and shown that he did not know

what Mr. Servando was planning to do. Second, he asserts that counsel was

ineffective in advising him about his right to testify because counsel did not tell him that

without his testimony there would be no evidence to contradict the case against him.

The Sixth Amendment to the United States Constitution guarantees a criminal

defendant the right to the effective assistance of counsel. In Strickland v. Washington,

466 U.S. 668 (1984), the United States Supreme Court set forth a two-prong test for

determining whether a habeas petitioner has received ineffective assistance of

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

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

functioning as counsel as guaranteed by the Sixth Amendment. Strickland, 466 U.S. at

687. Second, the petitioner must establish that counsel’s deficient performance

prejudiced the defense. Counsel’s errors must have been so serious that they

deprived the petitioner of a fair trial or appeal. Id. 

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

“outside the wide range of professionally competent assistance.” Id. at 690. The

reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at 689. 

There is a strong presumption that trial counsel rendered adequate assistance and

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made all significant decisions in the exercise of reasonable professional judgment. Id.

at 690. The petitioner bears the burden of overcoming the presumption that the

challenged actions were sound trial strategy.

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

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. A reasonable probability is one that is sufficient

to undermine confidence in the outcome of the proceeding. Id. “On balance, the

benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct

so undermined the proper functioning of the adversarial process that the [proceeding]

cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

The Supreme Court has confirmed that a federal court’s consideration of

ineffective assistance of counsel claims arising from state criminal proceedings is quite

limited on habeas review due to the deference accorded trial attorneys and state

appellate courts reviewing their performance. “The standards created by Strickland

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

‘doubly’ so.” Harrington, 562 U.S. at 105 (internal and end citations omitted). “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.” Id.

Petitioner raised the issue of counsel’s conduct in investigating his case and

preparing a defense on direct appeal. Citing the Strickland standard, the Michigan

Court of Appeals denied relief finding that Petitioner failed to support his assertions. 

The court explained in relevant part:

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Here, defendant failed to provide factual support for his various claims

that defense counsel ignored evidence or failed to present a substantial

defense. He asserts that defense counsel was aware of several possible

leads that might have established a defense or attacked the prosecution's

evidence, but he does not identify any such evidence with specificity.

Further, none of defendant's claims are based on any record evidence,

nor has defendant presented any affidavits or other evidentiary support

for his claims. Accordingly, he has failed to show that defense counsel

was ineffective.

Mendoza, 2010 WL 481001 at *4.

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

unreasonable application of federal law or the facts. Well-established federal law

requires that defense counsel conduct a reasonable investigation into the facts of a

defendant’s case, or make a reasonable determination that such investigation is

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

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

(6th Cir. 2005). The duty to investigate “includes the obligation to investigate all

witnesses who may have information concerning . . . guilt or innocence.” Towns, 395

F.3d at 258. That being said, decisions as to what evidence to present and whether to

call certain witnesses are presumed to be matters of trial strategy. When making

strategic decisions, counsel’s conduct must be reasonable. Roe v. Flores-Ortega, 528

U.S. 470, 481 (2000); see also Wiggins, 539 U.S. at 522-23. The failure to call

witnesses or present other evidence constitutes ineffective assistance of counsel only

when it deprives a defendant of a substantial defense. Chegwidden v. Kapture, 92 F.

App’x 309, 311 (6th Cir. 2004); Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002). 

In this case, Petitioner fails to provide any affidavits, testimony, or other

evidence to support his assertions that trial counsel failed to adequately investigate his

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case, that additional witnesses would have provided exculpatory evidence, or that he

was otherwise deprived of a substantial defense. It is well-settled that conclusory

allegations, without evidentiary support, are insufficient to warrant federal habeas relief. 

See Cross v. Stovall, 238 F. App'x 32, 39-40 (6th Cir. 2007); Workman v. Bell, 178

F.3d 759, 771 (6th Cir. 1998) (conclusory allegations of ineffective assistance of

counsel do not justify habeas relief); see also Washington v. Renico, 455 F.3d 722,

733 (6th Cir. 2006) (bald assertions and conclusory allegations do not provide sufficient

basis for an evidentiary hearing on habeas review). Petitioner fails to establish that trial

counsel erred and/or that he was prejudiced by counsel’s conduct.

As to the right to testify issue, Petitioner first raised this claim on collateral

review. The state trial court denied relief finding that Petitioner waived his right to

testify on the record and that he failed to show that his testimony would have affected

the outcome at trial. Mendoza, No. 08-220070-FC at *8-10. The state appellate courts

both denied leave to appeal.

The state courts’ denial of relief is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. It is well-established that a

criminal defendant has a constitutional right to testify in his own behalf. Rock v.

Arkansas, 483 U.S. 44, 52-53 & n. 10 (1987); Neuman v. Rivers, 125 F.3d 315, 318

(6th Cir. 1997). Nonetheless, “a ‘barebones assertion by a defendant, [even one]

made under oath, is insufficient to require a hearing or other action on his claim that his

right to testify in his own defense was denied him. It just is too facile a tactic to be

allowed to succeed. Some greater particularity is necessary . . . to give the claim

sufficient credibility to warrant a further investment of judicial resources in determining

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the truth of the claim.’” McCoy v. Bock, 2003 WL 22994984, *11 (E.D. Mich. Dec. 17,

2003) (Lawson, J.) (quoting Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991),

and citing Chang v. United States, 250 F.3d 79, 84-85 (2nd Cir. 2001); Sciliano v.

Vose, 834 F.2d 29, 31 (1st Cir. 1987)).

In this case, Petitioner makes only a bald assertion that trial counsel precluded

him from testifying at trial and/or that he did not understand counsel’s advice about

such matters. Petitioner does not allege facts to show that he was misled or believed

that he was not allowed to testify. Defense counsel’s role is to advise the defendant

whether to take the stand, but it is for the defendant, ultimately, to decide. See United

States v. Webber, 208 F.3d 545, 550-51 (6th Cir. 2000) (citing cases). A defendant

must “alert the trial court” that he or she desires to testify or that there is a

disagreement with counsel regarding whether he or she should take the stand. Waiver

is presumed from the defendant’s failure to testify or notify the trial court of the desire

to do so. Id. at 551. Petitioner did not testify nor notify the trial court of his desire to do

so during trial. Rather, he waived his right to testify on the record at trial. He also fails

to establish that counsel misadvised him about his rights, the prosecution’s case, or his

own defense to the charges.

Moreover, even if Petitioner could show that counsel mis-advised him, he fails to

show that he was prejudiced by counsel’s conduct. He does not explain with any

specificity what testimony he would have offered which would have countered the

significant evidence of his guilt presented at trial or affected the outcome at trial. As

discussed supra, conclusory allegations are insufficient to warrant habeas relief. 

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Petitioner fails to establish that trial counsel was ineffective under the Strickland

standard. Habeas relief is not warranted on these claims.

3. Illegal Vehicle Search Claim

Petitioner also asserts that he is entitled to habeas relief because the search of

his vehicle violated his Fourth Amendment rights such that the seized evidence should

have been suppressed at trial. He argues that the search was not consensual because

he is not fluent in English and did not understand the police officer’s request.

Federal courts will not address a Fourth Amendment claim upon habeas review

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

presentation of the claim was not thwarted by any failure of the state’s corrective

processes. See Stone v. Powell, 428 U.S. 465, 494-95 (1976). A court must perform

two distinct inquiries when determining whether a petitioner may raise a claim of illegal

arrest in a habeas action. First, the “court must determine whether the state

procedural mechanism, in the abstract, presents the opportunity to raise a fourth

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

claim was in fact frustrated because of a failure of that mechanism.” Machacek v.

Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (quoting Riley v. Gray, 674 F.2d 522 (6th

Cir. 1982)).

“Michigan has a procedural mechanism which presents an adequate opportunity

for a criminal defendant to raise a Fourth Amendment claim.” Robinson v. Jackson,

366 F. Supp. 2d 524, 527 (E.D. Mich. 2005). This procedural mechanism is a motion

to suppress, ordinarily filed before trial. See People v. Ferguson, 376 Mich. 90, 93-94,

135 N.W.2d 357, 358-59 (1965) (describing the availability of a pre-trial motion to

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suppress); see also People v. Harris, 95 Mich. App. 507, 509, 291 N.W.2d 97, 99

(1980) (analyzing the legality of a warrantless search, seizure, and arrest even though

raised for the first time on appeal). Consequently, Petitioner is entitled to relief on this

issue only if he establishes that he was prevented from litigating the Fourth

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

Petitioner has not done so. The record reveals that Petitioner moved to

suppress the evidence seized from his vehicle alleging that the search was not

consensual at the time of trial. The state trial court conducted an evidentiary hearing

and denied the motion. Petitioner raised the issue again in his motion for relief from

judgment and further argued that the police lacked justification to stop the vehicle and

ask for consent to search it. The state trial court found that the claim was defaulted

and lacked merit. Mendoza, No. 08-220070-FC at *6-7. The state appellate courts

both denied leave to appeal. Consequently, it is clear that the Michigan courts were

cognizant of Petitioner’s Fourth Amendment claim and that he received all the process

he was due. Accordingly, his Fourth Amendment claim is not cognizable on habeas

review pursuant to Stone v. Powell. Habeas relief is not warranted on this claim.

4. Ineffective Assistance of Appellate Counsel Claim

Lastly, Petitioner asserts that he is entitled to habeas relief because appellate

counsel was ineffective for failing to raise the foregoing issues that he raised in his

motion for relief from judgment on direct appeal. Petitioner first raised this claim on

collateral review. The state trial court denied relief finding that the claim lacked merit

because the underlying claims lacked merit. Mendoza, No. 08-220070-FC at *11. The

state appellate courts denied leave to appeal.

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The state courts’ denial of relief is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. As discussed supra, in

order to establish ineffective assistance of counsel, a habeas petitioner must show that

counsel’s performance was deficient and that the deficient performance prejudiced the

defense. Strickland, 466 U.S. at 687. With regard to appellate counsel, it is

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

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

U.S. 745, 751 (1983). The Supreme Court has explained:

For judges to second-guess reasonable professional judgments and

impose on appointed counsel a duty to raise every “colorable” claim

suggested by a client would disserve the ... goal of vigorous and effective

advocacy .... Nothing in the Constitution or our interpretation of that

document requires such a standard.

Id. at 754. Strategic and tactical choices regarding which issues to pursue on appeal

are “properly left to the sound professional judgment of counsel.” United States v.

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

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

on’ those more likely to prevail.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting

Barnes, 463 U.S. at 751-52). “Generally, only when ignored issues are clearly stronger

than those presented will the presumption of effective assistance of appellate counsel

be overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). Appellate

counsel may deliver deficient performance and prejudice a defendant by omitting a

“dead-bang winner,” defined as an issue which was obvious from the trial record and

would have resulted in reversal on appeal. Meade v. Lavigne, 265 F. Supp. 2d 849,

870 (E.D. Mich. 2003).

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In this case, Petitioner fails to show that by omitting the claims presented in his

motion for relief from judgment, appellate counsel’s performance fell outside the wide

range of professionally competent assistance. Appellate counsel raised substantial

claims on direct appeal, including an insufficient evidence claim, a great weight of the

evidence claim, and ineffective assistance of trial counsel claims. None of the other

claims subsequently raised by Petitioner are “dead-bang winners.” Moreover, even if

appellate counsel erred in some fashion, Petitioner cannot show that he was prejudiced

by counsel’s conduct given the state court’s determination and this court’s agreement

that the underlying claims lack merit. See discussion supra. Habeas relief is not

warranted on this claim.

V. CONCLUSION

 Accordingly, IT IS ORDERED that the court DENIES and DISMISSES WITH

PREJUDICE the petition for a writ of habeas corpus.

Before Petitioner may appeal this decision, a certificate of appealability must

issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability

may issue “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies a habeas claim on

the merits, the substantial showing threshold is met if the petitioner demonstrates that

reasonable jurists would find the court’s assessment of the claim debatable or wrong. 

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard

by demonstrating that . . . jurists could conclude the issues presented are adequate to

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

(2003). Having considered the matter, the court concludes that Petitioner fails to make

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a substantial showing of the denial of a constitutional right as to his habeas claims.

Accordingly, IT IS FURTHER ORDERED that the court DENIES a certificate of

appealability.

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: July 21, 2016

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, July 21, 2016, by electronic and/or ordinary mail.

 s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

S:\Cleland\JUDGE'S DESK\C2 ORDERS\14-13027.MENDOZA.deny2254denyCOA.smq.ctb.wpd

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