UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

_____________________________________________________________________

 

THOMAS EUGENE HOLDEN, #457855,

Petitioner,

v. Case No. 14-13701

THOMAS MACKIE, 

Respondent.

_________________________________/

OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION 

AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner Thomas Eugene Holden seeks the writ of habeas corpus under 28 

U.S.C. § 2254. He challenges his Michigan convictions for assault with intent to commit 

murder, Mich. Comp. Laws § 750.83, felon in possession of a firearm, Mich. Comp. 

Laws § 750.224f, and possession of a firearm during the commission of a felony (felony 

firearm), Mich. Comp. Laws § 750.227b. Holden argues in an amended brief filed on 

February 13, 2017 (ECF No. 16) iterations of the following claims : (1) he was deprived 

of a fair trial by the use of “other acts” evidence and the prosecutor’s closing argument;

(2) the trial court relied on inaccurate information at his sentencing and mis-scored the 

Michigan sentencing guidelines; and (3) he was deprived of effective assistance of trial 

and appellate counsel. In its response to the petition, the State argues that Holden’s 

claims are procedurally defaulted, not cognizable on habeas review, barred by the 

statute of limitations, or meritless and were reasonably rejected by the state courts. 

(ECF Nos. 10, 19.) For the reasons explained below, the court agrees with the State 
that Holden is not entitled to habeas corpus relief. Accordingly, the petition, as 

amended, will be denied. 

I. BACKGROUND

Holden was initially charged with assault with intent to commit murder, assault 

with a dangerous weapon, felon in possession of a firearm, and felony-firearm, second 

offense. The charges arose from an altercation between Holden and his stepfather, 

Dwight McCree (“Dwight”), in Detroit, Michigan on April 13, 2011. Holden was tried in 

Wayne County Circuit Court. The Michigan Court of Appeals accurately summarized the 

evidence at trial as follows:

Jerrell McCree testified that, on April 13, 2011, he was waiting for a ride 

outside of his father’s house when defendant, his half-brother, approached 

him “ready to fight.” After Jerrell stepped back, defendant threatened him 

saying, “When I catch you I’m beating your ass.” Jerrell then went back 

into the house and his father, Dwight McCree, walked outside and 

exchanged words with defendant, Dwight’s step-son. About ten minutes 

later, there was a knock on the door and Dwight walked to the door. 

Jerrell then heard about six shots fired outside the house. Next, he saw 

Dwight on the floor. Dwight said that he was hit on his shoulder and was 

bleeding. Jerrell testified that less than a week before this incident, he was 

driving defendant somewhere when a “heated argument” occurred and 

defendant “swung on me,” hitting Jerrell in the face. Jerrell got out of the 

vehicle and ran to a gas station. Defendant chased him driving the vehicle. 

At the gas station, defendant got out of the vehicle, approached Jerrell, 

struck him, and then tried to drag him out of the gas station. Jerrell “pulled

back and that was it.” Jerrell had not seen defendant again until the day of 

this shooting.

Dwight testified that, on April 13, 2011, he was home when Jerrell came 

into the house and looked upset. Dwight looked out the front door and saw 

defendant. Defendant told Dwight he “was on my last leg and then he said 

he had one of those too.” Dwight believed that defendant was referring to 

the fact that Dwight was “getting old” and that defendant also had a gun. 

Dwight had a gun in the house and defendant knew where the gun was 

located. Defendant told Dwight that he would be right back and left in his 

car. About ten minutes later, Dwight heard shots being fired outside and a 

window in his house breaking. Dwight got his shotgun, ran to the front of 

the house, and began opening the front door. While he was opening the 
3

door, he then heard another shot, which penetrated the door and caused 

the door to open.

After the door opened, Dwight saw defendant on the front porch and he 

was holding a gun in his right hand. No one else was seen. Dwight fired a 

shot through the closed screen door hoping to scare defendant away. 

Dwight then moved to the right side of the door, and two more shots were 

fired into Dwight’s house through a window on the side of the door where 

Dwight was standing. Those two shots struck Dwight in his upper right 

shoulder. He slid down the wall and then looked out the window and saw 

defendant drive off in his car. Dwight identified defendant as the shooter to 

the police. Dwight testified that he had had problems “off and on” with 

defendant; it was a “bad relationship.” Detroit Police Officer Donald 

Covington testified that he responded to a shooting and arrived at the 

house to find bullet holes in the front door and window of the house, as 

well as a victim who had been shot in the shoulder. The victim was Dwight 

and he identified defendant as the shooter. 

People v. Holden, No. 308164, 2013 WL 1165220, at *1 (Mich. Ct. App. Mar. 21, 2013). 

At trial, Holden did not testify or present any witnesses, and the parties 

stipulated, for purposes of the felon-in-possession count, that Holden had a prior felony 

conviction and was ineligible to possess a gun on the day in question. Holden’s defense 

was that he was not the shooter and was not present during the shooting. In the 

alternative, Holden argues that even if the jury believed the witnesses’ testimony, he 

had no intent to kill or wound anyone. 

The trial court merged the two assault counts in its charge to the jury and 

instructed the jurors that they could find Holden not guilty, guilty as charged of assault 

with intent to commit murder, or guilty of one of two lesser offenses: assault with intent 

to do great bodily harm less than murder or assault with a dangerous weapon. The 

court also instructed the jurors that they could find Holden “not guilty” or “guilty” of the 

two firearm charges. 
4

On December 9, 2011, the jury found Holden guilty of assault with intent to 

commit murder, felon in possession of a firearm, and felony-firearm. On December 22, 

2011, the trial court sentenced Holden as a habitual offender to a term of 20 to 30 years 

in prison for the assault conviction, 10 to 20 years for the felon-in-possession conviction, 

and 5 years for the felony-firearm conviction.

Holden appealed to the Michigan Court of Appeals, arguing through counsel that: 

(1) the trial court deprived him of his right to a fair trial by admitting irrelevant evidence 

of an unrelated assault, and the prosecutor exacerbated the error during closing 

arguments; and (2) the trial court mis-scored offense variable six of the Michigan 

sentencing guidelines. The Michigan Court of Appeals rejected Holden’s claims and 

affirmed his convictions and sentence in an unpublished, per curiam decision. See 

Holden, 2013 WL 1165220 (Mich Ct. App. 2013). On July 30, 2013, the Michigan 

Supreme Court denied Holden leave to appeal because it was not persuaded to review 

the issues. See People v. Holden, 834 N.W.2d 494 (Mich. 2013).

On September 23, 2014, Holden filed his habeas corpus petition, which raised 

the same two claims that he presented to the state court on direct review. After the 

State filed an answer to the petition, Holden moved for a stay of the federal proceeding 

while he pursued additional state remedies for new claims regarding his trial and 

appellate attorneys. (ECF No. 12.) The court granted Holden’s motion to stay and 

closed this case for administrative purposes. (ECF No. 14.)

 Holden then filed a pro se motion for relief from judgment in the state trial court, 

arguing that his trial and appellate attorneys were ineffective. The state trial court found 
5

no merit in Holden’s claims about trial counsel and denied his motion because he failed 

to raise his claims on appeal. See People v. Holden, No. 11-8368-01 (Wayne Cty. Cir. 

Ct. Mar. 25, 2015) (unpublished). Holden appealed the trial court’s decision, but the 

Michigan Court of Appeals denied leave to appeal because Holden failed to establish 

that the trial court erred in denying his motion for relief from judgment. See People v. 

Holden, No. 332824 (Mich. Ct. App. July 6, 2016) (unpublished). On January 31, 2017, 

the Michigan Supreme Court denied leave to appeal because Holden failed to establish 

entitlement to relief under Michigan Court Rule 6.508(D). See People v. Holden, 889 

N.W.2d 265 (Mich. 2017). 

Holden then filed a motion to re-open this case and an amended brief in support 

of his habeas claims. (ECF No. 16.) The amended brief raises the claims that Holden 

presented to the state court on direct review and on state collateral review. The court 

granted Holden’s motion and re-opened this case. (ECF No. 17.) The amended petition 

has been fully briefed.

II. STANDARD OF REVIEW

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

habeas petitioners who challenge “a matter ‘adjudicated on the merits in State court’ to 

show that the relevant state court ‘decision’ (1) ‘was contrary to, or involved an 

unreasonable application of, clearly established Federal law,’ or (2) ‘was based on an 

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

court proceedings.’” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) (quoting 28 U.S.C. 

§ 2254(d)). “[A] federal habeas court may not issue the writ simply because that court 
6

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

clearly established federal law erroneously or incorrectly. Rather, that application must 

also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus 

imposes a highly deferential standard for evaluating state-court rulings and demands 

that [state-court decisions] be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 

766, 773 (2010) (internal citations and quotations omitted). 

“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) (quoting Yarborough v. 

Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal 

court, a state prisoner must show that the state court’s ruling on his or her 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. at 103. Thus, 

“[o]nly an ‘objectively unreasonable’ mistake, one ‘so lacking in justification that there 

was an error well understood and comprehended in existing law beyond any possibility 

for fairminded disagreement,’ slips through the needle’s eye of § 2254.” Saulsberry v. 

Lee, 937 F.3d 644, 648 (6th Cir. 2019) (quoting Richter, 562 U.S. at 103) (internal 

citation omitted). A state-court’s factual determinations, moreover, are presumed correct 

on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is “limited to the record 

that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
7

III. ANALYSIS

A. “Other Acts” Evidence

In his first claim, Holden alleges that the trial court deprived him of a fair trial by 

admitting irrelevant and unfairly prejudicial evidence of an unrelated assault. The 

disputed evidence consisted of Jerrell McCree’s testimony that, about a week before 

Holden’s assault on Dwight, Holden asked Jerrell to drive him somewhere, and when 

Jerrell apparently did not take the route that Holden wanted him to take, Holden swung 

at Jerrell and hit him on the face. Jerrell then exited the vehicle and ran to the nearest 

gas station. Holden followed Jerrell in the vehicle, got out of the car at the gas station, 

and hit Jerrell again. The altercation ended after Holden dragged Jerrell out of the gas 

station. (ECF No. 11-5, PageID.261–63.) 

Holden argues in his habeas petition that this evidence was improperly admitted 

at his trial because it had no relationship to the incident for which he was on trial and 

because the evidence neither proved, nor disproved, the two main issues: the identity of 

the shooter and the shooter’s intent. Holden also alleges that the prosecutor violated the 

Michigan Rules of Evidence by failing to (1) give proper notice of her intent to use the 

evidence and (2) offer a non-propensity rationale for the evidence. Holden further 

alleges that the prosecutor exacerbated the error during closing arguments by using the 

“other acts” evidence to argue that Holden was a violent individual. Finally, Holden 

argues that the cumulative effect of the errors deprived him of his constitutional right to 

a fair trial. 
8

The Michigan Court of Appeals reviewed Holden’s claim for “plain error” because 

he objected at trial on the basis of relevance, but on appeal, he argued for the first time 

that the evidence was inadmissible under Michigan Rule of Evidence 404(b). The Court 

of Appeals analyzed Holden’s claim and concluded that the disputed evidence was 

admissible under either Michigan Rule of Evidence 404(b) or under the res gestae 

exception to Rule 404(b). The Court of Appeals also rejected Holden’s argument that 

the prosecutor’s failure to give notice of her intent to use the evidence was reversible 

error. Finally, the Court of Appeals stated that, although the prosecutor’s closing 

argument about Holden being a violent individual was improper, the error was harmless. 

The State argues that the first part of Holden’s claim is procedurally defaulted 

because Holden failed to make a proper objection at trial. In the habeas context, a 

procedural default is “a critical failure to comply with state procedural law.” Trest v. Cain, 

522 U.S. 87, 89 (1997). Under the related doctrine, “a federal court will not review the 

merits of [a state prisoner’s] claims, including constitutional claims, that a state court 

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

Martinez v. Ryan, 566 U.S. 1, 9 (2012). 

A procedural default, however, is not a jurisdictional bar to review of the merits of 

a claim, Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and “federal courts are 

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

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

Singletary, 520 U.S. 518, 525 (1997)). Because Holden’s claim regarding the admission 

of “other acts” evidence and the prosecutor’s closing argument does not warrant habeas 
9

relief, the court bypasses the procedural-default analysis and directly proceeds to the 

merits of Holden’s first claim. 

1. Jerrell’s Testimony Regarding his Prior Altercation with Holden

Holden’s claim that the admission of “other acts” evidence violated the Michigan 

Rules of Evidence is not cognizable on federal habeas review. Hall v. Vasbinder, 563 

F.3d 222, 239 (6th Cir. 2009) (“To the extent that any testimony and comments violated 

Michigan’s rules of evidence, such errors are not cognizable on federal habeas 

review.”). Furthermore, Holden’s claim is not cognizable on habeas review because 

“[t]here is no clearly established Supreme Court precedent which holds that a state 

violates due process by permitting propensity evidence in the form of other bad acts 

evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Consequently, the state 

courts’ rulings on the “other acts” evidence were not “contrary to” any Supreme Court 

decision under AEDPA. Id.

Of course, “[i]f a ruling is especially egregious and ‘results in a denial of 

fundamental fairness, it may violate due process and thus warrant habeas relief.’” 

Wilson v. Sheldon, 874 F.3d 470, 475 (6th Cir. 2017) (citations omitted). But “states 

have wide latitude with regard to evidentiary matters under the Due Process Clause,” 

and state-court evidentiary rulings do not rise to the level of a due process violation 

unless they offend a fundamental principle of justice. Id. at 475–76. 

In the present case, the disputed evidence was admitted for a proper purpose. In 

the words of the Michigan Court of Appeals,

Jerrell’s testimony regarding the violent nature of defendant’s actions 

toward him less than a week before the shooting gave context to the 
10

events that occurred on the day of the shooting, explaining the 

background circumstances of this crime. The testimony explained why, 

when he saw Jerrell for the first time since that altercation, defendant 

approached Jerrell “ready to fight.” The testimony also explained why 

Jerrell immediately retreated and appeared upset to his father, Dwight, 

who then went to the front door of his house to investigate the cause. The 

jury could infer from this evidence that a continuing and unresolved “family 

feud” led to defendant firing several gunshots at his mother and 

stepfather’s house. . . . 

There was no other evidence of record which would explain why 

defendant, without reason or provocation, would fire several gunshots at 

the house. And without Jerrell’s contested testimony, the jury would have 

been deprived “an intelligible presentation of the full context in which the 

disputed events took place,” i.e., the “complete story.” 

Holden, 2013 WL 1165220, at *2–3. 

The evidence also was relevant because Holden’s “defense was that he did not 

commit the charged crimes,” and “[i]dentity is always an essential element in a criminal 

case.” Id. at *4. “The evidence tended to establish that, because of an on-going family 

dispute, defendant was the person who fired several gunshots at the house, two of 

which struck Dwight.” Id. Finally, the evidence was not unfairly prejudicial. In the state 

court’s words, the evidence, “was more than marginally probative and was unlikely to be 

given undue weight by the jury because the prior incident involved Jerrell, did not 

involve a gun or shooting, and the charged crimes were not committed against Jerrell.” 

Id. 

The court concludes that Jerrell’s testimony regarding the altercation with Holden 

about a week before the shooting was not so fundamentally unfair as to deprive Holden 

of due process. Therefore, he is not entitled to relief on his claim.
11

2. The Prosecutor’s Closing Argument

Holden contends that the prosecutor’s closing argument regarding Jerrell’s “other 

acts” testimony exacerbated the evidentiary error and constituted improper propensity 

evidence. 

The Supreme Court has said that prosecutors have a duty to “refrain from 

improper methods calculated to produce a wrongful conviction.” Viereck v. United 

States, 318 U.S. 236, 248 (1943). Prosecutorial-misconduct claims are reviewed 

deferentially in a habeas case. Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004).

When the issue is the prosecutor’s remarks during closing arguments, the “clearly 

established Federal law” is the Supreme Court’s decision in Darden v. Wainwright, 477 

U.S. 168 (1986). Parker v. Matthews, 567 U.S. 37, 45 (2012) (per curiam). In Darden, 

the Supreme Court stated that:

[I]t “is not enough that the prosecutors’ remarks were undesirable or even 

universally condemned.” Darden v. Wainwright, 699 F.2d [1031, 1036 

(11th Cir. 1983)]. The relevant question is whether the prosecutors’

comments “so infected the trial with unfairness as to make the resulting 

conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 

637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Moreover, the appropriate 

standard of review for such a claim on writ of habeas corpus is “the narrow 

one of due process, and not the broad exercise of supervisory power.” Id., 

at 642.

Darden, 477 U.S. at 181. 

The prosecutor made the remarks in dispute in this case when summarizing 

Jerrell’s testimony about his altercation with Holden at the gas station. She said:

And what did the defendant do? I believe the witness said he got heated 

and he hit his brother in the face. And Jerrell McCree told you that he got 

out [of] the car and he began to run. And did the defendant leave it right 

there? No. He escalated the situation and chased his brother in the car to 
12

the gas station. Did he leave it there? No. He escalated that situation and 

went inside the gas station after his brother; hit him again; the witness said 

he fell to the ground and then the defendant tried to drag him out of the 

gas station, ‘cause that’s the type of person the defendant is. He’s a 

violent individual. Obviously, a family familiar (sic) relationship did not 

mean anything at the time. 

(ECF No. 11-5, PageID.326) (emphasis added). 

No witnesses at trial testified that familial relationships meant nothing to Holden. 

Furthermore, the prosecutor expressed her personal opinion when she stated that 

Holden was a violent individual. Prosecutors should refrain from interjecting their 

personal beliefs into the presentation of their cases. United States v. Young, 470 U.S. 1, 

8–9 (1985). They should also refrain from emphasizing a defendant’s bad character and 

from relying on facts not in evidence. Hodge v. Hurley, 426 F.3d 368, 384 (6th Cir. 

2005). Nevertheless, the jury could infer from trial testimony about Holden’s behavior 

toward family members that he was a violent individual who gave little regard for his 

familial relationships. Thus, the prosecutor’s remarks were not so unfair as to deprive 

Holden of due process. See United States v. Polizzi, 500 F.2d 856, 899 (9th Cir. 1974) 

(concluding that the prosecutor’s comments during closing arguments— that the 

defendants were violent individuals—were not so prejudicial as to require reversal of the 

jury’s verdicts). The prosecutor for Holden’s trial was permitted to “argue the record . . . 

and forcefully assert reasonable inferences from the evidence.” Cristini v. McKee, 526 

F.3d 888, 901 (6th Cir. 2008).

The Michigan Court of Appeals, moreover, determined that the prosecutor’s 

remarks were harmless. The Court of Appeals’ decision was an objectively reasonable 

conclusion given the substantial amount of evidence against Holden and the fact that 
13

the trial court sustained defense counsel’s objection to the prosecutor’s remarks. (ECF 

No. 11-5, PageID.327.) The trial court also instructed the jurors at the beginning of the 

trial and in its concluding charge to the jury that the attorneys’ arguments were not 

evidence and that the jurors should only base their verdict on the admissible evidence. 

(Id. at PageID.50–51; ECF No.11-6, PageID.6–7.) Juries are presumed to follow a trial 

court’s instructions. Richardson v. Marsh, 481 U.S. 200, 211 (1987). A court’s

instruction to a jury that the attorneys’ arguments are not evidence can cure

improprieties in closing arguments. Byrd v. Collins, 209 F.3d 486, 537 (6th Cir. 2000)

(quoting United States v. Carroll, 26 F.3d 1380, 1389 n. 12 (6th Cir. 1994)). For all the 

foregoing reasons, Holden is not entitled to relief on his prosecutorial-misconduct claim. 

3. Cumulative Effect of Errors

Holden maintains that the cumulative effect of the “other acts” evidence and the 

prosecutor’s remarks deprived him of a fair trial. Post-AEDPA, however, this claim is not 

cognizable on habeas corpus review because “[t]he Supreme Court has not held that 

distinct constitutional claims can be cumulated to grant habeas relief.” Lorraine v. Coyle, 

291 F.3d 416, 447 (6th Cir. 2002); see also Sheppard v. Bagley, 657 F.3d 338, 348 (6th 

Cir. 2011); Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005). 

B. The Sentencing Guidelines

In his second claim, Holden alleges that the trial court erroneously scored fifty 

points for offense variable six of the Michigan sentencing guidelines. Offense variable 

six “is the offender’s intent to kill or injure another individual.” Mich. Comp. Laws § 
14

777.36(1). A sentencing court may score fifty points for this offense variable if the 

offender premeditated a killing. Mich. Comp. Laws § 777.36(1)(a).

The state trial court scored fifty points for offense variable six because it thought 

that Holden had premeditated his crimes based on the trial court’s conclusion that, prior 

to the shooting, Holden told Dwight, “I’m coming back to get you.” (ECF No. 11-7, 

PageID.372.) According to Holden, the trial court’s belief that Holden said, “I’m coming 

back to get you,” is not supported by the record. 

The Michigan Court of Appeals concluded on review of Holden’s claim that the 

trial court’s scoring of offense variable six was not clearly erroneous because:

[T]he record evidence included that defendant implied to Dwight that he 

had a gun, said that Dwight was “on his last leg,” and that he “would be 

right back.” About ten minutes later, Dwight heard gunshots outside his 

house and a window breaking in his house. Several more gunshots were 

fired and Dwight was actually struck with two bullets. Dwight also testified 

that his relationship with defendant was “bad.”

Holden, 2013 WL 1165220, at *5. 

This court finds no merit in Holden’s claim because a trial court’s error “in 

applying the state sentencing guidelines raises an issue of state law only,” Garcia–

Dorantes v. Warren, 769 F. Supp. 2d 1092, 1112 (E.D. Mich. 2011) (Lawson, J.), and 

“federal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 

U.S. 764, 780 (1990)). Holden, nevertheless, claims that the trial court violated his 

constitutional right to due process by sentencing him on inaccurate information.

A sentence violates due process of law if the trial court relied on extensively and

materially false information that the defendant had no opportunity to correct through 

counsel. Townsend v. Burke, 334 U.S. 736, 741 (1948). To obtain relief, Holden must 
15

show that his sentence was “founded at least in part upon misinformation of 

constitutional magnitude.” United States v. Tucker, 404 U.S. 443, 447 (1972). 

Here, although there was no testimony at trial that Holden threatened to return to 

Dwight’s home and “get him,” Dwight testified at the preliminary examination that, when 

he looked out his front door and saw Holden, Holden informed him that he was coming 

back to “get” Dwight. (ECF No. 11-2, PageID.151.) Dwight also testified at the 

preliminary examination that on the day of the shooting, he and Holden did not begin 

fighting until after Holden said that he was going to “get” him. (Id. at 151–52.)

“Sentencing courts have long enjoyed discretion in the sort of information they 

may consider when setting an appropriate sentence.” Dean v. United States, 137 S. Ct. 

1170, 1175 (2017) (citing Pepper v. United States, 562 U.S. 476, 487–489 (2011)). In 

Michigan, “[w]hen calculating the sentencing guidelines, a court may consider all record 

evidence, including . . . testimony presented at a preliminary examination.” People v. 

McChester, 873 N.W.2d 646, 648 (Mich. Ct. App. 2015) (citing People v. Johnson, 826 

N.W.2d 170, 172 (Mich. Ct. App. 2012)). Thus, the sentencing court could rely on 

Dwight’s statements at the preliminary examination in formulating Holden’s sentence. 

Furthermore, there was trial testimony that after Holden fired a few shots at the 

front of Dwight’s house, Dwight moved in front of a window and Holden fired his gun two 

more times, hitting Dwight in the shoulder. Based on this testimony, the trial court did 

not rely on materially false information or misinformation of constitutional magnitude 

when it concluded that Holden premeditated his offense. Holden is not entitled to relief 

on his sentencing claim. 
16

C. Trial Counsel 

Holden’s next five claims allege ineffective assistance of trial and appellate 

counsel. The State argues that the five claims are barred by the habeas statute of 

limitations and that Holden’s claims about trial counsel are also procedurally defaulted 

because he did not raise those claims on direct appeal. 

The habeas statute of limitations is not jurisdictional, Holland v. Florida, 560 U.S. 

631, 645 (2010) (quoting Day v. McDonough, 547 U.S. 198, 205 (2006)). The court 

finds it more efficient to analyze Holden’s claims on an alternative basis than to 

determine whether the claims are barred by the statute of limitations. Accordingly, the 

court excuses the alleged failure to comply with the statute of limitations and proceeds 

to address Holden’s claims about trial counsel under the doctrine of procedural default. 

1. The Law of Procedural Default

As noted above, a procedural default is “a critical failure to comply with state 

procedural law.” Trest, 522 U.S. at 89. The Supreme Court has held that, 

[i]n all cases in which a state prisoner has defaulted his federal claims in 

state court pursuant to an independent and adequate state procedural 

rule, federal habeas review of the claims is barred unless the prisoner can 

demonstrate cause for the default and actual prejudice as a result of the 

alleged violation of federal law, or demonstrate that failure to consider the 

claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). In this Circuit, therefore,

“[a] habeas petitioner’s claim will be deemed procedurally defaulted if 

each of the following four factors is met: (1) the petitioner failed to comply 

with a state procedural rule; (2) the state courts enforced the rule; (3) the 

state procedural rule is an adequate and independent state ground for 

denying review of a federal constitutional claim; and (4) the petitioner has 

not shown cause and prejudice excusing the default.” [Jalowiec v. 

Bradshaw, 657 F.3d 293, 302 (6th Cir. 2011)]. To determine whether a 
17

state procedural rule was applied to bar a habeas claim, [courts] look “to 

the last reasoned state court decision disposing of the claim.” Guilmette v. 

Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc).

Henderson v. Palmer, 730 F.3d 554, 560 (6th Cir. 2013). 

The state procedural rule at issue here is Michigan Court 6.508(D)(3), which 

reads in relevant part as follows:

(D) Entitlement to Relief. The defendant has the burden of establishing 

entitlement to the relief requested. The court may not grant relief to the 

defendant if the motion 

. . . . 

(3) alleges grounds for relief, other than jurisdictional 

defects, which could have been raised on appeal from the 

conviction and sentence or in a prior motion under this 

subchapter, unless the defendant demonstrates 

(a) good cause for failure to raise such grounds 

on appeal or in the prior motion, and 

(b) actual prejudice from the alleged 

irregularities that support the claim for relief.

Mich. Ct. R. 6.508(D)(3).

2. Application

Petitioner violated Rule 6.508(D)(3) by not raising his claims about trial counsel 

in his appeal of right. He raised those claims for the first time in his post-appellate 

motion for relief from judgment. Petitioner’s violation of Rule 6.508(D)(3) satisfies the 

first procedural-default factor. 

The state trial court was the last state court to address Holden’s claims about the 

adequacy of his trial counsel in a reasoned decision and it rejected these claims 
18

because Holden did not show “good cause” under Rule 6.508(D)(3)(a) for failing to raise 

his claims on appeal or “actual prejudice” under Rule 6.508(D)(3)(b). This state court 

ruling constituted enforcement of Rule 6.508(D). Although the trial court also stated that 

Holden’s claims about trial counsel lacked merit, the state court’s alternative holding 

does not require this court to disregard the state court’s procedural ruling. Harris v. 

Reed, 489 U.S. 255, 264 n.10 (1989); Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998). 

Thus, the trial court’s ruling on Holden’s trial counsel claims satisfies the second 

procedural-default factor. 

The third procedural-default factor also is satisfied because Rule 6.508(D) is an 

adequate and independent ground on which state courts may rely to foreclose review of 

federal claims. Howard, 405 F.3d at 477. So, to prevail on his procedurally defaulted 

claims, Holden must show “cause” for his state procedural error and resulting prejudice. 

Holden alleges in his seventh claim that his appellate attorney was ineffective for 

failing to raise his claims about trial counsel on direct appeal. Constitutionally ineffective 

assistance of counsel is cause for a procedural default. Murray v. Carrier, 477 U.S. 478, 

488 (1986). However, an appellate attorney is constitutionally ineffective only if (1) the 

attorney acted unreasonably in failing to discover and raise nonfrivolous issues on 

appeal and (2) there is a reasonable probability the defendant would have prevailed on 

appeal if his attorney had raised the issue. Smith v. Robbins, 528 U.S. 259, 285 (2000).

When assessing the second prong of the Robbins test, the court considers the 

strength of the claims that appellate counsel failed to raise. Carter v. Parris, 910 F.3d 

835, 841 (6th Cir. 2018) (quoting Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008)), 
19

cert. denied, 139 S. Ct. 2703 (2019). “If there is no ‘reasonable probability that inclusion 

of the issue would have changed the result of the appeal,’ then habeas relief will not be 

granted.” Id. (quoting McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004)).

With these considerations in mind, the court will briefly address Holden’s claims 

about his trial attorney, keeping in mind that a trial attorney is constitutionally ineffective 

only if counsel’s performance was deficient and the deficient performance prejudiced 

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

a. Counsel of Choice

In his third claim, Holden alleges that (1) the trial court deprived him of his right to 

counsel of choice and (2) his appointed attorney was ineffective for failing to (a) raise 

the counsel-of-choice issue in the trial court, (b) recuse himself after learning that 

Holden wanted to retain another attorney, and (c) request an adjournment so that 

Holden could retain another attorney. 

The court has found no evidence in the record that Holden was unhappy with his 

appointed attorney, that he wanted to retain a different attorney, or that the trial court 

deprived him of his right to counsel of choice. The state trial court’s docket shows that 

retained counsel filed an appearance in Holden’s case on August 25, 2011, but an 

appointed attorney represented Holden at the preliminary examination on the same day 

and at all subsequent proceedings. Trial counsel was apparently appointed due to 

Holden’s indigence, and “the right to counsel of choice does not extend to defendants 

who require counsel to be appointed for them.” United States v. Gonzalez-Lopez, 548 

U.S. 140, 151 (2006). Therefore, the trial court did not deprive Holden of a constitutional 
20

right, and trial counsel was not ineffective for failing to raise the counsel-of-choice issue, 

recuse himself, or request an adjournment so that Holden could retain another attorney. 

b. Plea Bargaining 

Holden alleges in his fourth claim that he was denied effective assistance of 

counsel during plea bargaining. According to Holden, trial counsel declined a favorable 

offer from the prosecution without informing Holden of the offer. 

The record indicates that Holden was present during his arraignment in Wayne 

County Circuit Court when his attorney stated that the prosecution had not made any 

offers. The attorney also stated that Holden was not interested in pleading guilty, at 

least, not on the main charge. Holden did not contradict his attorney’s remarks or say 

anything to the trial court. (ECF No. 11-3, PageID.180.)

At a subsequent motion hearing, which Holden attended, the prosecutor offered 

to dismiss two of the charges and the habitual offender notice if Holden pleaded guilty to 

assault with intent to murder and felony firearm. Defense counsel’s response to the offer 

was, “I will go see if they have a better offer” and “We’ve gotten past this point.” (ECF 

No. 11-4, PageID.193–94.) The trial court then stated that if there was no resolution, 

everyone should return to court on the date and time set for trial. (Id. at PageID.194.)

The next court proceeding was the trial, which commenced on December 8, 

2011. Nothing further was said about any plea negotiations, but in a post-trial letter to 

Holden’s appellate attorneys, trial counsel stated that Holden would have been allowed 

to plead guilty to assault with intent to do great bodily harm less than murder and felonyfirearm. Although Holden contends that the letter is proof that his trial attorney did not 
21

convey a plea offer to him, trial counsel also explained in the letter that Holden rejected 

the offer, contrary to counsel’s advice and the advice of Holden’s family. (ECF No. 21, 

PageID.972.) The record does not support Holden’s claim that his trial attorney rejected 

a plea offer without first consulting Holden. 

c. Failure to Raise an Insanity Defense or 

 Move for a Competency Examination

Holden’s fifth claim alleges that trial counsel failed to (1) investigate evidence that 

he suffered from severe depression, (2) request a competency examination, and (3) 

consider the possibility of an insanity defense. In support of this claim, Holden alleges 

that he was involuntarily committed for mental health treatment before the incident in 

question and that trial counsel knew this but failed to investigate whether an insanity 

defense might be available. 

i. Insanity

An attorney’s failure to explore the possibility of a not-guilty-by-reason-of-insanity 

defense can rise to the level of constitutionally defective counsel. Daoud v. Davis, 618 

F.3d 525, 532 (6th Cir. 2010) (quoting Lundgren v. Mitchell, 440 F.3d 754, 771 (6th Cir. 

2006)). Nevertheless, in Michigan, an insanity defense based on mental illness requires 

a defendant to prove that due to mental illness, he lacked a substantial capacity to 

appreciate the nature and quality of the wrongfulness of his conduct or to conform his 

conduct to the requirements of the law. People v. Jackson, 627 N.W.2d 11, 14–15 

(Mich. Ct. App. 2001). One factor that a court can consider when determining whether 

the defendant could conform his conduct to the requirements of the law is whether the 

defendant had the ability to control his behavior. Id. at 15. 
22

Holden has not presented the court with any credible evidence that he was 

insane or even mentally ill at the time of the shooting. Even if he was suffering from 

mental illness at the time, the testimony at trial demonstrates that he could control his 

behavior. He had an argument with his half-brother Jerrell before the shooting incident 

and when Dwight confronted him, Holden said that he would be back. About 10 or 15

minutes later, Holden returned to Jerrell and Dwight’s residence and fired his gun. He 

first shot at the door, and when Dwight moved to a window, Holden shot at the window. 

He then left the residence. Because Holden engaged in purposeful and goal-oriented 

behavior, an insanity defense would not have been viable, and trial counsel was not 

ineffective for failing to assert an insanity defense. Chapman v. United States, 74 Fed. 

App’x 590, 593 (6th Cir. 2003) (“Counsel is not required by the Constitution to raise 

frivolous defenses or arguments to avoid a charge of ineffective representation.”).

ii. Incompetence

The test for competency to stand trial is whether the defendant “has sufficient 

present ability to consult with his lawyer with a reasonable degree of rational 

understanding—and whether he has a rational as well as factual understanding of the 

proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960) (per 

curiam); accord Drope v. Missouri, 420 U.S. 162, 171 (1975) (stating that “a person 

whose mental condition is such that he lacks the capacity to understand the nature and 

object of the proceedings against him, to consult with counsel, and to assist in preparing 

his defense may not be subjected to a trial”); United States v. Abdulmutallab, 739 F.3d 

891, 899 (6th Cir. 2014) (stating that “[t]he test for competency to stand trial is whether 
23

the defendant has (1) sufficient present ability to consult with a lawyer with a reasonable 

degree of rational understanding, and (2) a rational and factual understanding of the 

proceedings against him”) (footnote omitted). 

Even if Holden was severely depressed and mentally ill, as he claims, it does not 

follow that he was incompetent to stand trial. United States v. Davis, 93 F.3d 1286, 

1290 (6th Cir. 1996) (quoting Newfield v. United States, 565 F.2d 203, 206 (2d Cir. 

1977)). At trial, Holden engaged in a colloquy with the court when he waived his right to 

testify. He stated that he understood his right to testify and his right to remain silent and 

that the decision was his to make. (ECF No. 11-5, PageID.324–25.) The trial court then 

noted that Holden had been afforded an opportunity to discuss the advisability of 

testifying or not testifying with his attorney. When the trial court asked Holden if he had 

decided whether or not to testify, Holden said, “Can I have one second, your Honor?”

(Id. at PageID.325.) The trial court responded, “Yeah, sure.” (Id.)

 The record is silent as to whether Holden actually consulted his attorney at that 

point. Even if he did not speak with his attorney, he informed the trial court shortly after 

requesting “one second” of time that he did not want to take the stand. (Id. ) The 

colloquy demonstrates that Holden understood the proceedings against him and that he 

had a sufficient ability to consult with his lawyer. 

Additionally, at his sentencing two weeks later, Holden made an impassioned 

argument in his defense. He claimed that Dwight was “a wanted man” who was 

accusing him of something he did not do, that he (Holden) could barely use his right arm 

at the time of the shooting, and that it would have been impossible to see Dwight at the 
24

time of the shooting because the blinds in the house were closed. (ECF No. 11-7, 

PageID.376–77.) When the trial court subsequently asked Holden how many years he 

thought he should be in prison, Holden responded, “If it was up to me your Honor, I 

don’t know. I just know it wasn’t me there and it’s crazy for them to be accusing me of 

this.” (Id. at PageID.377–78.)

The record indicates that Holden was competent during the court proceedings. 

Therefore, trial counsel was not ineffective for failing to request a competency hearing.

See Chapman, 74 Fed. App’x at 593.

d. Failure to Investigate

In his sixth claim, Holden asserts that trial counsel failed to investigate Dwight’s 

criminal history and use of medications. Holden, however, has not shown that Dwight 

actually had a criminal history. Additionally, though Holden asserts that effective crossexamination of Dwight’s use of medication and ability to observe the incident in question 

could have undermined Dwight’s credibility, Holden suffered no prejudice from his 

attorney’s failure to explore the issue on cross examination because the trial court sua 

sponte raised that issue when the court noticed that Dwight’s speech seemed 

somewhat slow. (ECF No. 11-5, PageID.295–96.) In response to the court’s inquiry, 

Dwight explained that he was taking about ten different medications due to kidney 

problems, high blood pressure, and a double fracture in his foot. (Id. at PageID.296.)

Dwight also admitted to taking muscle relaxers to help him relax, and he stated that the 

medications sometimes affected his memory. (Id. at PageID.297.) But Dwight claimed to 
25

remember the shooting, and he said that it was only “the time things” that he did not 

clearly recall. (Id.) 

Given the trial court’s thorough questioning of Dwight about his medications, 

defense counsel was not ineffective for failing to raise the same issue on crossexamination. Even if trial counsel’s performance was deficient, the deficient 

performance did prejudice the defense because Dwight testified on re-direct 

examination by the prosecutor that his medications did not affect his vision or his ability 

to recognize Holden on the night of the crime. (Id. at PageID.303.)

3. Conclusion on Holden’s “Cause” Argument; 

Prejudice; Miscarriage of Justice

For the reasons given above, Holden’s claims about trial counsel lack merit. 

Therefore, appellate counsel did not act unreasonably in failing to discover and raise the 

claims on appeal, and there is no reasonable probability that Holden would have 

prevailed on appeal if his appellate attorney had raised the issues. It follows that 

appellate counsel was not ineffective or “cause” for Holden’s procedural default. 

The court need not determine whether the alleged constitutional errors prejudiced 

Holden because he has failed to show cause for his failure to comply with state law. 

Smith v. Murray, 477 U.S. 527, 533 (1986); Simpson v. Jones, 238 F.3d 399, 409 (6th 

Cir. 2000). 

In the absence of “cause and prejudice,” a habeas petitioner may pursue a 

procedurally defaulted claim if he can demonstrate that failure to consider his claim will 

result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. “A 

fundamental miscarriage of justice results from the conviction of one who is ‘actually 
26

innocent.’” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (citing Carrier, 477 

U.S. at 496). “To be credible, [a claim of actual innocence] requires [the] petitioner to 

support his allegations of constitutional error with new reliable evidence—whether it be 

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 

evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). 

Holden has not presented the court with new and reliable evidence of actual 

innocence. Therefore, a miscarriage of justice will not occur as a result of the court’s 

failure to address the merits of Holden’s claims about trial counsel. His third, fourth, fifth, 

and sixth claims satisfy all four factors to justify procedural default and will be denied on 

that basis.

D. Appellate Counsel

In his seventh and final claim, Holden raises an independent claim about his 

appellate attorney. He alleges that appellate counsel failed to investigate his case and 

should have raised his claims about trial counsel on appeal. 

No state court addressed this issue on the merits. Although the trial court 

implicitly rejected Holden’s claim about appellate counsel in its order denying Holden’s 

motion for relief from judgment, the focus of the order was Holden’s claim that trial 

counsel was ineffective. The trial court’s conclusion—that Holden’s claims lacked 

merit—also referred to trial counsel. Thus, there was no clear adjudication on the merits 

of Holden’s claim about appellate counsel, and “the deference due under AEDPA does 

not apply.” Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (citing Williams v. 

Coyle, 260 F.3d 684, 706 (6th Cir. 2001)). 
27

Holden was represented by appointed counsel on appeal. He had no 

constitutional right to compel his appointed attorney to raise nonfrivolous arguments if 

the attorney, as a matter of professional judgment, decided not to raise the requested 

arguments. Jones v. Barnes, 463 U.S. 745, 751 (1983) “In fact, the process of 

winnowing out weaker arguments on appeal is the hallmark of effective appellate 

advocacy.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (quotation marks and 

citations omitted). To prevail on his claim for ineffective assistance of appellate counsel, 

Holden must demonstrate that (1) his appellate attorney acted unreasonably in failing to 

discover and raise nonfrivolous issues on appeal and (2) there is a reasonable 

probability he would have prevailed on appeal if his attorney had raised the issues. 

Robbins, 528 U.S. at 285 (citing Strickland, 466 U.S. at 687–91, 694). 

Holden’s underlying claims about trial counsel and the trial court’s alleged failure 

to honor his right to counsel of choice lack merit for the reasons given in the discussion 

above. Therefore, Holden’s claim that appellate counsel was ineffective for failing to 

raise these arguments also lacks merit. “[B]y definition, appellate counsel cannot be 

ineffective for a failure to raise an issue that lacks merit.” Greer v. Mitchell, 264 F.3d 

663, 676 (6th Cir. 2001). The court will deny his final claim. 

IV. CERTIFICATE OF APPEALABILITY

Before Petitioner may appeal the court’s decision, a certificate of appealability 

must issue. See 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 federal court dismisses 
28

a petition on procedural grounds without addressing the merits, a certificate of 

appealability should issue if it is shown that jurists of reason would find it debatable 

whether the petitioner states a valid claim of the denial of a constitutional right and 

whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 

529 U.S. 473, 484-85 (2000). The court concludes that reasonable jurists would not

debate the correctness of the court’s ruling. A certificate of appealability will be denied.

V. CONCLUSION

The state appellate court’s adjudication of Holden’s first two claims was not 

contrary to Supreme Court precedent, an unreasonable application of Supreme Court 

precedent, or an unreasonable application of the facts. Habeas claims three through six 

are procedurally defaulted, and Holden’s seventh claim lacks merit. Accordingly,

IT IS ORDERED that the petition for writ of habeas corpus (ECF No. 1), as 

amended, is DENIED.

IT IS FURTHER ORDERED that Holden’s informal requests in his pleadings for 

an evidentiary hearing and appointment of counsel are DENIED.

Finally, IT IS ORDERED that a Certificate of Appealability is DENIED.

s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: November 4, 2019

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

on this date, November 4, 2019, by electronic and/or ordinary mail. 

s/Lisa Wagner 

Case Manager and Deputy Clerk

(810) 292-6522

S:\Cleland\Cleland\HEK\Staff Attorney\14-13701.HOLDEN.2254.BH.HEK.docx