1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

BRYAN MCGHEE, 

 Petitioner, 

 Case No: 14-cv-14564 

v. Honorable Linda V. Parker 

 

DUNCAN MACLAREN, 

 Respondent. 

__________________________________________________________________ 

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF 

HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF 

APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS 

 Bryan McGhee, (“Petitioner”), confined at the Kinross City Correctional 

Facility in Kincheloe, Michigan, filed a pro se petition for a writ of habeas corpus 

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

conviction for second-degree murder, Mich. Comp. Laws § 750.317. For the 

reasons stated below, the petition for a writ of habeas corpus is DENIED WITH 

PREJUDICE. 

I. Background 

 Petitioner was convicted following a jury trial in the Wayne County Circuit 

Court. This Court recites verbatim the relevant facts relied upon by the Michigan 

Court of Appeals, which are presumed correct on habeas review pursuant to 28 
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U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009). 

Defendant’s conviction involves the stabbing death of William Fish 

on May 18, 2009, in Detroit. The prosecution alleged that defendant 

stabbed Fish in anger over an earlier fight that had occurred between 

defendant and an individual named Cameron, and in which Fish was 

also involved. Defendant maintained that Fish assaulted him with a 

knife and that he stabbed Fish in self-defense during a struggle for that 

knife. At trial, two men who were present with Fish during the 

stabbing, Benjamin Tucker and Patrick Mayo, provided their versions 

of the incident, as did defendant. In addition, all three men testified 

about the earlier fight, as did a fourth witness, Johnny McDaniel. 

People v. McGhee, No. 295708, 2011 WL 566844, at *1 (Mich. Ct. App. Feb. 17, 

2011). 

 The Court also recites these additional facts. The medical examiner testified 

that the cause of death was multiple stab wounds, finding that “[T]here were three 

stab wounds, one on the right chest, one on the left chest and one on the left arm.” 

(ECF No. 6-9 at Pg ID 452.) The stab wound labeled “number one,” located on the 

right upper chest, proceeded through the spaces between the ribs and perforated the 

lower part of the right lung. (Id.) Stab wound “number two,” located on the left 

lower chest, went through the tissues beneath the ribs and tore the tissue that 

envelopes the heart, the pericardium. (Id.) This wound also ripped the right side 

of the heart and the middle portion of the heart. (Id. at Pg ID 452-53.) The 

combination of the piercing of the right lung and heart caused “extensive bleeding 

into the chest cavity,” according to the medical examiner. (Id. at Pg ID 453.) Stab 

wound “number three,” located on the lateral portion of the left arm, slashed 
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through the skin and the soft tissues beneath the skin as well as the muscle beneath 

the soft tissue. (Id.). The first injury was a downward motion, and the second 

injury was an upward motion. (Id. at Pg ID 465.) Although the medical examiner 

could not definitively state that Fish’s left arm injury constituted a defensive 

wound, he did say that the injury to the left arm might be a defensive wound. (Id. 

at Pg ID 466.) 

 Petitioner testified that the victim (Fish) “pulled out a knife.” (ECF No. 6-

11 at Pg ID 837.) Petitioner further testified that Fish cut petitioner’s right arm 

with the knife, which caused him to bleed. (Id. at Pg ID 838-39.) A struggle then 

ensued, according to petitioner, in which he grabbed Fish’s hand. (Id. at Pg ID 

839.) Breaking free, petitioner testified that he ran away. Petitioner claimed he 

had no reason to harm Fish and denied intentionally stabbing him repeated times 

that night. (Id. at Pg ID 841.) 

 Petitioner’s conviction was affirmed on appeal. People v. McGhee, No. 

295708, 2011 WL 566844; lv. den. 490 Mich. 896, 804 N.W. 2d 555 (2011). 

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

denied. People v. McGhee, No. 09-017549-FC (Third Cir. Ct., Dec. 3, 2012). The 

Michigan appellate courts denied petitioner leave to appeal. People v. McGhee, 

No. 316330 (Mich. Ct. App. Oct. 25, 2013); lv. den. 495 Mich. 993, 845 N.W. 2d 

117 (2014); reconsideration den. 497 Mich. 857, 852 N.W. 2d 160 (2014). 
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Petitioner seeks a writ of habeas corpus on the following grounds: 

I. The state court unlawfully deprived the Petitioner of his due 

process, equal protection, and other protected rights under the United 

States and Michigan Constitutions when it responded to the jury’s 

request to review key testimony by indicating that it would take 

substantial time to prepare a transcript and asked the jury to rely on its 

collective memories, thus forcing a coerced verdict. 

II. Petitioner was denied his right to counsel of choice, by his trial 

judge, in violation of his Sixth Amendment, thus, a structural error 

was committed against him, which requires automatic reversal. 

III. Mr. McGhee was denied his constitutional right to a fair and 

impartial jury, by the trial court not holding a hearing pursuant to 

Remmer v. United States, 347 Us 227, 320; 74 S.Ct. 450; 98 L. Ed 2d 

654 (1954), where after opening statements were given, juror 9 seen 

[sic] the victim’s family and knew one of them, because they worked 

at Ford Motor Company together, and, at least one other juror worked 

at the same Ford plant, yet, no inquiry was undertaken to protect Mr. 

McGhee’s rights and counsel was ineffective in failing to completely 

preserve this issue. 

IV. Substantial prosecutorial misconduct deprived Petitioner of his 

rights to a fair trial pursuant to Us [sic] Constitutional Amend V, XIV, 

Mich. Const. 1963, Art. 1, § 17 and 20. 

V. Petitioner was denied his Fifth Amendment constitutional rights 

to a fair and impartial trial where the trial court abused its discretion 

in allowing in prejudicial evidence that went to the conclusion of law 

for the trier of fact to determine[.] 

VI. Petitioner was denied his constitutional right to the effective 

assistance of appellate counsel on his appeal of right. U.S. Const. Am. 

VI, XIV. 

VII. The state courts erred and violate[d] Petitioner’s right to a fair 

trial, and due process of law regarding ineffective assistance of 

counsel without holding an evidentiary hearing to assess counsel’s 

performance as identified in the above issues, and prejudice suffered. 
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U.S. Const. Amend. V, XIV; Mich. Const. 1963, Art 1, §17, 20. 

II. Standard of Review

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

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

habeas cases: 

An application for a writ of habeas corpus on behalf of a person in 

custody pursuant to the judgment of a State court shall not be granted 

with respect to any claim that was adjudicated on the merits in State 

court proceedings unless the adjudication of the claim– 

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

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in 

the State court proceeding. 

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

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

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

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

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

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

facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the 

writ simply because that court concludes in its independent judgment that the 

relevant state-court decision applied clearly established federal law erroneously or 
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incorrectly.” Id. at 410-11. 

 The Supreme Court explained that a “federal court’s collateral review of a 

state-court decision must be consistent with the respect due state courts in our 

federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “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) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 

(1997); 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 emphasized “that even 

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

unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). 

Furthermore, 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. In order to obtain habeas relief in 

federal court, a state prisoner is required to show that the state court’s rejection of 
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his claim “was so lacking in justification that there was an error well understood 

and comprehended in existing law beyond any possibility for fairminded 

disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be 

denied relief as long as it is within the “realm of possibility” that fairminded 

jurists could find the state court decision to be reasonable. See Woods v. Etherton,

136 S. Ct. 1149, 1152 (2016). 

III. Discussion

A. Procedural Default

 Respondent claims that petitioner’s first through fifth claims are 

procedurally defaulted for various reasons. This Court notes that procedural 

default is not a jurisdictional bar to the review of a habeas petition on the merits. 

See Trest v. Cain, 522 U.S. 87, 89 (1997). In addition, “[F]ederal 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)). “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. 

 Respondent alleges that petitioner’s first claim is waived, having failed to 

object to preserve the error during trial. Respondent further alleges that the 
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second through fifth claims are procedurally defaulted because petitioner raised 

them for the first time in his post-conviction motion for relief from judgment and 

failed to show cause and prejudice, as required by M.C.R. 6.508(D)(3), for failing 

to raise these claims on his appeal of right. 

 The Michigan Court of Appeals and the Michigan Supreme Court rejected 

petitioner’s post-conviction appeal on the ground that “the defendant has failed to 

meet the burden of establishing entitlement to relief under MCR 6.508(D),” 

without referring to subsection (D)(3) or mentioning petitioner’s failure to raise 

these claims on his direct appeal as their rationale for rejecting his post-conviction 

claims. Because the form orders in this case citing Rule 6.508(D) are ambiguous 

as to whether they refer to procedural default or a denial of post-conviction relief 

on the merits, the orders are unexplained. See Guilmette v. Howes, 624 F. 3d 286, 

291 (6th Cir. 2010). This Court must “therefore look to the last reasoned state 

court opinion to determine the basis for the state court’s rejection” of petitioner’s 

claims. Id. Although the trial judge mentioned M.C.R. 6.508(D)(3) in her 

opinion, she did not specifically invoke the court rule nor mention petitioner’s 

failure to raise the claims on his direct appeal as the basis for rejecting these 

claims. Because the last reasoned state court decision appears to have rejected the 

petitioner’s claims on the merits, this Court concludes that these claims are most 

likely not procedurally defaulted. Guilmette, 624 F. 3d at 292. In addition, 
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petitioner’s first claim is non-cognizable. The Court believes that judicial 

economy is served by addressing the merits of these claims. 

 B. Claim 1 – Failure to Read Testimony 

 Petitioner contends that the trial court judge deprived him of his due process 

rights when she responded to the jury’s request to review witness testimony by 

stating that it would take substantial time to prepare a transcript and then told the 

jury to rely on their collective memories. 

 There is no federal constitutional law which requires that a jury be provided 

with a witness’ testimony. See Bradley v. Birkett, 192 Fed. App’x. 468, 477 (6th 

Cir. 2006). The reason for this is that there is no U.S. Supreme Court decision 

that requires judges to re-read testimony of witnesses or to provide transcripts of 

their testimony to jurors upon their request. See Friday v. Straub, 175 F. Supp. 2d 

933, 939 (E.D. Mich. 2001). A habeas petitioner’s claim that a state trial court 

violated his right to a fair trial by refusing to grant a jury request for transcripts is 

therefore not cognizable in a habeas proceeding. Bradley, 192 Fed. App’x. at 477; 

Spalla v. Foltz, 615 F. Supp. 224, 233-34 (E.D. Mich. 1985). Given the lack of 

holdings by the Supreme Court on the issue of whether a state trial judge is 

required to re-read the testimony of witnesses or provide transcripts of their 

testimony to jurors upon their request, the Michigan Court of Appeals’ rejection 

of petitioner’s claim was not an unreasonable application of clearly established 
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federal law. See, e.g., Wright v. Van Patten, 552 U.S. 120, 126 (2008); Carey v. 

Musladin, 549 U.S. 70, 77 ( 2006). 

 C. Claim 2 – Choice of Counsel

 Petitioner contends that the trial court erred in denying his motion for an 

adjournment so that he could retain new counsel after expressing dissatisfaction 

with his appointed counsel on the morning of trial. The trial court rejected 

petitioner’s claim in his motion for relief from judgment as follows: 

On the morning of his trial the defendant told the court that his 

family had hired a new attorney for him and he did not want to 

proceed with his court appointed attorney. The court questioned the 

defendant about his reasons for changing attorneys at that late 

moment. The defendant complained that his appointed attorney did 

not file a motion that he asked her to file, she told him negative 

things about his case, she argued with his mother and she called him 

stupid. The court pointed out that the attorney he wished to go to trial 

with had not properly filed an appearance with the court or notified 

the court that he would be substituting into the case despite being in 

the courtroom several times in the previous week, nor was he 

prepared to go to trial on the scheduled date. The court noted that the 

assigned attorney was prepared to go to trial, she had appeared at 

every pretrial matter without the defendant complaining and that she 

was not required to file motions that had no merit. It was also noted 

that this was the second trial date for the defendant because he had 

fired his first attorney on the date of his trial and was then appointed 

a new attorney. The prosecutor had several witnesses subpoenaed for 

this trial date, including an expert witness, and was prepared to 

proceed to trial. The court denied the defendant’s request to adjourn 

his trial but allowed the retained attorney to sit as co-counsel through 

the entire trial. The retained attorney declined to do so. 

People v. McGhee, No. 09-017549-FC, * 3-4 (Third Cir. Ct., Dec. 3, 2012). 

 The Sixth Amendment right to the assistance of counsel does not guarantee a 
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criminal defendant that he or she will be represented by a particular attorney. 

Serra v. Michigan Dep’t of Corr., 4 F.3d 1348, 1351 (6th Cir. 1993) (citing

Caplin & Drysdale v. United States, 491 U.S. 617, 624 (1989)). A criminal 

defendant who has the desire and the financial means to retain his or her own 

counsel “should be afforded a fair opportunity to secure counsel of his own 

choice.” Id. (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)). Indeed, “[t]he 

Sixth Amendment guarantees the defendant the right to be represented by an 

otherwise qualified attorney whom that defendant can afford to hire, or who is 

willing to represent the defendant even though he is without funds.” U.S. v. 

Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (quoting Caplin & Drysdale, 491 U.S. 

at 624-25). However, while a criminal defendant who can afford his or her own 

attorney has a right to a chosen attorney, that right is a qualified right. Serra, 4 

F.3d at 1348 (citing Wheat v. United States, 486 U.S. 153, 159 (1988)). The right 

to counsel of one’s own choice is not absolute. See Wilson v. Mintzes, 761 F.2d 

275, 280 (6th Cir. 1985). “Although a criminal defendant is entitled to a 

reasonable opportunity to obtain counsel of his choice, the exercise of this right 

must be balanced against the court’s authority to control its docket.” Lockett v. 

Arn, 740 F.2d 407, 413 (6th Cir. 1984); see also Gonzalez-Lopez, 548 U.S. at 151-

52) (“Nothing we have said today casts any doubt or places any qualification upon 

our previous holdings that limit the right to counsel of choice and recognize the 
12 

authority of trial courts to establish criteria for admitting lawyers to argue before 

them....We have recognized a trial court’s wide latitude in balancing the right to 

counsel of choice against the needs of fairness, and against the demands of its 

calendar.”) (internal citations omitted). Furthermore, the right to counsel of 

choice may not be used to unreasonably delay a trial. See Linton v. Perini, 656 

F.2d 207, 209 (6th Cir. 1981).

 In reviewing a motion for substitution of counsel, a reviewing court should 

consider “the timeliness of the motion; the adequacy of the [trial] court’s inquiry 

into the defendant’s complaint; and the asserted cause for that complaint, 

including the extent of the conflict or breakdown in communication between 

lawyer and client (and the client’s own responsibility, if any, for that conflict).” 

Martel v. Clair, 132 S. Ct. 1276, 1287 (2012). “Because a trial court’s decision 

on substitution is so fact-specific, it deserves deference; a reviewing court may 

overturn it only for an abuse of discretion.” Id.

 This Court first notes that petitioner’s request for a continuance to obtain 

new counsel was untimely because it was made on the day of trial. Petitioner 

offered no reasons to the state courts or to this Court why he did not bring his 

dissatisfaction with his counsel up to the trial court earlier. The Sixth Circuit has 

noted that when “the granting of the defendant’s request [for a continuance to 

obtain new counsel] would almost certainly necessitate a last-minute continuance, 
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the trial judge’s actions are entitled to extraordinary deference.” U.S. v. Whitfield, 

259 Fed. App’x. 830, 834 (6th Cir. 2008) (quoting United States v. Pierce, 60 

F.3d 886, 891 (1st Cir.1995)); see also United States v. Reevey, 364 F.3d 151, 157 

(4th Cir. 2004) (“a continuance request for the substitution of counsel made on the 

first day of trial is clearly ‘untimely under all but the most exigent 

circumstances.’”). The Sixth Circuit has rejected similar requests as being 

untimely. See U.S. v. Trujillo, 376 F.3d 593, 606-07 (6th Cir. 2004) (finding 

motion for substitution of counsel untimely, coming only three days prior to the 

start of the trial); United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996) 

(finding motion to continue to obtain new counsel untimely when it was made the 

day before trial). Petitioner was previously granted a continuance when he fired 

his first retained counsel and requested court appointed counsel. Petitioner’s 

request for a continuance to obtain new retained counsel on the day of trial was 

untimely, particularly when petitioner had several opportunities prior to trial to 

bring his dissatisfaction with counsel to the attention of the trial court. Whitfield, 

259 Fed. App’x. at 834. 

 Moreover, in rejecting petitioner’s motion, the trial court judge seemed to 

imply that petitioner was requesting the adjournment to stall the trial, because she 

noted that this was the second trial date for petitioner, after petitioner fired his first 

attorney on the first scheduled date of his trial, at which point, the judge appointed 
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a second attorney. Although petitioner alleges that he was denied his right to 

proceed to trial with new retained counsel, the record clearly reflects that retained 

counsel first filed an unsigned, undated appearance the morning of trial and that 

retained counsel was unprepared and unavailable for trial that day. (ECF No. 6-9 

at Pg ID 280-83.) To the contrary, petitioner’s appointed counsel was prepared to 

proceed to trial. Also, the trial court agreed to allow new retained counsel to act 

as co-counsel, which was declined. (Id. at Pg ID 284.) 

 Following the court’s ruling, petitioner asked, “So I am still going to trial?” 

(Id.) Petitioner then went on a tirade that resulted in his removal from the 

courtroom and return to jail; surprised that the court could proceed without him, 

petitioner asked “How you gon’ have it without me?” (Id. at Pg ID 284-88.) A 

defendant’s right to counsel of choice may not be used to unreasonably delay a 

trial. Linton, 656 F. 2d at 209. As a result, petitioner is not entitled to habeas 

relief on his second claim, because the state courts’ decisions to refuse to permit 

petitioner to substitute counsel were not contrary to clearly established federal law 

as decided by the United States Supreme Court. See Ray v. Curtis, 21 Fed. App’x. 

333, 335 (6th Cir. 2001). 

C. Claim 3 – Right to a Fair and Impartial Jury

 Petitioner alleges that he was entitled to a Remmer hearing to determine if 

any of the other jurors were prejudiced by a statement made by Juror #9 that he 
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knew one of the family members of the victim from working together at Ford 

Motor Company. Petitioner also claims that Juror #11, who was also a Ford 

Motor employee, should have been questioned by the court to determine whether 

this juror knew the victim’s family member and whether this juror could be fair 

and impartial. 

 In Remmer v. United States, 347 U.S. 227, 230 (1954), the Supreme Court 

held that a trial court confronted with an allegation of external tampering or 

contact with a juror during a trial about a matter pending before the jury “should 

determine the circumstances, the impact [of the contact] upon the juror, and 

whether or not it was prejudicial, in a hearing with all interested parties permitted 

to participate.” However, a Remmer hearing is not required unless the defendant 

can show that the unauthorized juror contact “created actual juror bias.” United 

States v. Frost, 125 F.3d 346, 377 (6th Cir. 1997). 

 To be entitled to a Remmer hearing, a defendant “must do more than simply 

raise the possibility of bias.” Jackson v. Bradshaw, 681 F.3d 753, 766 (6th Cir. 

2012). A defendant “must make a colorable claim of extraneous influence,” that 

is, “one derived from specific knowledge about or a relationship with either the 

parties or their witnesses.” Id. “Examples of extraneous influences include ‘prior 

business dealings with the defendant, applying to work for the local district 

attorney, conducting an [out-of-court] experiment, and discussing the trial with an 
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employee.’” Id. (internal quotation omitted). A trial court “should consider the 

content of the allegations, the seriousness of the alleged misconduct or bias, and 

the credibility of the source when determining whether a hearing is required.” 

Kowalak v. Scutt, 712 F.Supp.2d 657, 692 (E.D. Mich. 2010) (quoting Sims v. 

Rowland, 414 F.3d 1148, 1155 (9th Cir. 2005) (internal quotation omitted). To be 

entitled to a post-trial hearing on an extraneous influence claim, a defendant must 

“come[ ] forward with clear, strong, substantial and incontrovertible evidence that 

a specific, non-speculative impropriety has occurred.” Id. (internal quotation 

omitted). 

 Moreover, “[s]ince the trial judge is in the best position to determine the 

nature and extent of alleged jury misconduct, his decision on the scope of 

proceedings necessary to discover misconduct is reviewed only for an abuse of 

discretion.” United States v. Rigsby, 45 F.3d 120, 125 (6th Cir. 1995) (quoting 

United States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir. 1985)). In a habeas 

corpus case, a state court’s findings on whether, and how, an extraneous matter 

affected jury deliberations “deserve[ ] a ‘high measure of deference.’” Mahoney 

v. Vondergritt, 938 F.2d 1490, 1492(1st Cir. 1991) (quoting Rushen v. Spain, 464 

U.S. 114, 120 (1983)). 

 Petitioner is not entitled to habeas relief on his right to a fair and impartial 

jury claim because he never presented evidence of any jury impropriety. The trial 
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court judge excused Juror # 9, who knew a member of the victim’s family. (ECF 

No. 6-9 at Pg ID 442-44.) Juror #11 retired from Ford Motor Company five years 

earlier and did not indicate that he knew the family members of the victim. (Id. at 

Pg ID 303-04.) There is no record evidence that Juror # 11 and Juror # 9 knew 

each other and merely working for the same company would not be indicative of 

bias against petitioner. In light of the fact that Juror # 9 had been removed from 

the jury, petitioner is not entitled to habeas relief because there is no evidence that 

Juror # 9 discussed his acquaintance with the victim’s family with the other jurors 

or that Juror # 11 knew any of the victim’s family members. See e.g. Young v. 

Trombley, 435 Fed. App’x. 499, 505-06 (6th Cir. 2011) (holding that state court’s 

determination that petitioner was not deprived of his Sixth Amendment right to an 

impartial jury was not an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding, where the record contained no 

evidence or other indication that any member of the jury was influenced by the 

fact that a dismissed juror might have previously known one of the victims). 

Because petitioner’s extraneous influence claim is conclusory and unsupported, he 

is not entitled to habeas relief on his third claim. Kowalak, 712 F. Supp. 2d at 

692-93. Furthermore, trial counsel was not ineffective for failing to have a 

hearing on a conclusory and unsupported claim. 
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D. Claim 4 – Prosecutorial Misconduct

Petitioner claims that he was denied a fair trial because of prosecutorial 

misconduct. “Claims of prosecutorial misconduct are reviewed deferentially on 

habeas review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing 

Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor’s improper 

comments will be held to violate a criminal defendant’s constitutional rights only 

if they “‘so infected the trial with unfairness as to make the resulting conviction a 

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

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

misconduct will thus form the basis for habeas relief only if the conduct was so 

egregious as to render the entire trial fundamentally unfair based on the totality of 

the circumstances. Donnelly, 416 U.S. at 643-45. In order to obtain habeas relief 

on a prosecutorial misconduct claim, a habeas petitioner must show that the state 

court’s rejection of his prosecutorial misconduct claim “was so lacking in 

justification that there was an error well understood and comprehended in existing 

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

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

1. Shifting the Burden

Petitioner alleges that the prosecutor shifted the burden by injecting 

prejudicial information through the testimony of her witness, Mr. Tucker, 
19 

specifically eliciting testimony from this witness that petitioner murdered the 

victim. Petitioner claims that this testimony was prejudicial because it required 

the witness to reach a conclusion of law which should have been left for the jury. 

The prosecutor asked her witness if he recognized anyone from the photo lineup 

and what he told the police. The witness indicated that he identified petitioner and 

that he told the police that he witnessed petitioner murdering Will. (ECF No. 6-10 

at Pg ID 652-60.) At the preliminary examination, this witness was asked what he 

saw at the time of the incident. (Id. at Pg ID 642.) The objection pertained to the 

witness’ conclusion that he saw petitioner murdering Will. (Id. at Pg ID 660.) At 

trial, the witness testified to what he told the police. The witness indicated how he 

identified petitioner’s photo to the police. (Id.) He identified petitioner as the 

person who murdered the victim based on what he observed. (Id.) 

The question posed by the prosecutor was relevant to establishing the 

witness’ identification of petitioner. A prosecutor does not commit misconduct by 

asking witnesses relevant questions. See Slagle v. Bagley, 457 F.3d 501, 518 (6th 

Cir. 2006). Another judge in this district has rejected a similar claim involving 

similar questions and comments. See Fuller v. Lafler, 826 F. Supp. 2d 1040, 1059 

(E.D. Mich. 2011)(finding that prosecutor’s characterization of expert medical 

witness called by defendant in child sexual abuse case as “hired gun” was not so 

inflammatory that it affected fairness of trial so as to rise to level of a due process 
20 

violation). A single comment made by a witness while testifying in connection 

with his identification of petitioner did not render petitioner’s trial fundamentally 

unfair when the trial lasted four days and contained testimony from numerous 

witnesses. Although petitioner alleges that this single comment could have biased 

the jury, the burden is on petitioner to show actual bias where there are claims of 

juror bias. See Phillips v. Bradshaw, 607 F3d 199, 223 (6th Cir. 2010). Petitioner 

was not denied his right to a fair trial as a result of the prosecutor’s question. 

2. Pretrial Silence

 Petitioner alleges that the prosecutor committed misconduct by repeatedly 

commenting on petitioner remaining silent following the assault, in violation of 

his right to remain silent. 

 The Supreme Court has held that prosecutors may use a defendant’s prearrest silence as substantive evidence of his guilt so long as the defendant did not 

expressly invoke his right to remain silent. Salinas v. Texas, 133 S. Ct. 2174, 

2179, 2184 (2013); see also Abby v. Howe, 742 F.3d 221, 228 (6th Cir. 2014). 

When viewed in context, the prosecutor’s comments referred to petitioner’s 

silence before he had been arrested and before he invoked his right to remain 

silent. Furthermore, any admission of petitioner’s pre-arrest silence in this case 

would have been harmless error at best, in light of the overwhelming evidence 

against petitioner. See United States v. Banks, 29 Fed. App’x. 276, 284 (6th Cir. 
21 

2002). 

Petitioner raised his pre-arrest issue in his motion for relief from judgment. 

The trial court rejected this claim, finding that the prosecutor specifically used 

petitioner’s pre-arrest silence to impeach petitioner’s credibility regarding his 

claim of self-defense. People v. McGhee, 09-017549-01-FC, at * 7. Petitioner 

testified that he was defending himself against the victim’s knife assault when he 

grabbed the knife. Being that he was arrested several days after the incident, the 

prosecutor’s questions about why he failed to contact the police about his claim 

that he was assaulted by the decedent directly challenged his claim of selfdefense. 

The Supreme Court has held that use of a defendant’s pre-arrest silence for 

impeachment purposes does not violate the Fifth Amendment right against selfincrimination or the Fourteenth Amendment right to due process. Jenkins v. 

Anderson, 447 U.S. 231, 238-39 (1980). Moreover, in the absence of any 

indication that a criminal defendant had not received his Miranda warnings, the 

use of post-arrest silence to impeach a defendant’s credibility when that defendant 

chooses to take the witness stand does not violate the Due Process Clause. See 

Fletcher v. Weir, 455 U.S. 603, 606-07 (1982). In Fletcher, the Supreme Court 

held that it was not unconstitutional for a prosecutor to use the defendant’s postarrest silence for impeachment purposes where the defendant testified at trial that 
22 

he stabbed the victim in self-defense and that the stabbing was accidental. Id.

 Petitioner testified that he stabbed the victim in self-defense. References to 

petitioner’s pre-arrest silence would have been permissible under Jenkins to 

impeach his credibility. When viewed in the overall context, the comments about 

petitioner’s silence appear to have been used by the prosecutor to cast doubt on 

petitioner’s claim of self-defense and not as substantive evidence of petitioner’s 

guilt. See Seymour v. Walker, 224 F.3d 542, 560 (6th Cir. 2000). Therefore, 

Petitioner’s claim is meritless. 

3. Closing Argument

 Petitioner claims that the prosecutor injected facts into her closing argument 

that were not presented at trial when she stated that petitioner’s cousin was seen 

earlier that day with what might have been the murder weapon. 

 Misrepresenting facts in evidence by a prosecutor can amount to substantial 

error because doing so “may profoundly impress a jury and may have a significant 

impact on the jury’s deliberations.” Washington v. Hofbauer, 228 F.3d 689, 700 

(6th Cir. 2000) (quoting Donnelly, 416 U.S. at 646). Likewise, it is improper for a 

prosecutor during closing arguments to bring to the jury any purported facts which 

have not been introduced into evidence and which are prejudicial. Byrd v. Collins, 

209 F.3d 486, 535 (6th Cir. 2000). However, prosecutors must be given leeway to 

argue reasonable inferences from the evidence. Id.
23 

There was record support for the prosecutor’s argument. Patrick Mayo 

testified that he saw “Don P” with a five-inch hunting knife. (ECF No. 6-11 at Pg 

ID 726-27.) Veronica Hicks confirmed that Don P. was petitioner’s cousin Kevin, 

who drove petitioner to the murder scene that night. (ECF No. 6-10 at Pg ID 566; 

569; 591.) Mayo also testified that he saw something white in petitioner’s hands 

after petitioner stabbed Fish, and that following the stabbing, petitioner stood in 

the middle of the street “talking about how he was a killer, yelling it.” (ECF No. 

6-11 at Pg ID 747.) 

 Petitioner testified that after the victim got out of the car, they argued and 

the victim pulled out a knife and cut his arm with it. (Id. at Pg ID 836.) At that 

point petitioner grabbed the victim’s hand and they tussled over the knife. (Id.) 

Petitioner stated that he was not aware that the victim was injured until he backed 

away and saw blood on the victim’s shirt. Petitioner estimated the struggle over 

the knife lasted only seconds. (Id. at Pg ID 836-39.) 

 While petitioner claims that no one saw the victim or himself with a knife 

that night, petitioner’s testimony at trial provides a detailed account pertaining to a 

struggle over a knife. Furthermore, Patrick Mayo testified that he saw petitioner’s 

cousin with a knife, that petitioner’s cousin drove petitioner to the scene of the 

stabbing, and that he saw something in petitioner’s hand as petitioner shouted 

about being a killer following the stabbing. The prosecutor did not improperly 
24 

interject facts pertaining to the use of a knife. The prosecutor was free to argue 

reasonable inferences from the evidence which supported a finding that 

petitioner’s cousin was seen with a knife earlier that day at an earlier altercation 

involving petitioner and Cameron, which was broken up by Fish and that 

petitioner’s cousin drove petitioner to find Fish, resulting in Fish dying from 

multiple stab wounds. Petitioner’s claim is unfounded and without merit. 

 4. Cumulative Misconduct

 Petitioner contends that the cumulative effect of the prosecutor’s comments 

and questions deprived him of a fair trial. The Sixth Circuit has noted that the 

United States 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). Petitioner’s claim that the prosecutor’s comments and remarks 

cumulatively deprived him of a fair trial is an inadequate ground for granting 

federal habeas relief, because it is essentially a cumulative errors claim. See e.g. 

Noel v. Norris, 194 F. Supp. 2d 893, 931-32 (E.D. Ark. 2002); aff’d 322 F. 3d 500 

(8th Cir. 2003); cert. den. 124 S. Ct. 13 (2003). Petitioner is therefore not entitled 

to habeas relief on his cumulative error claim. 

V. Claim 5 - Abuse of Discretion

 Petitioner alleges that the trial court abused its discretion when it allowed in 

prejudicial evidence that went to the legal conclusion of petitioner’s guilt in the 
25 

stabbing. 

Mr. Tucker testified that when asked to identify petitioner during a photo 

lineup, he looked at the picture and then told the officer “[he] Murder[ed] Will.” 

(ECF No. 6-10 at Pg ID 652-60.) The trial court overruled trial counsel’s 

objection finding that the statement was relevant and its probative value 

substantially outweighed the danger of unfair prejudice. 

Errors in the application of state law, especially rulings regarding the 

admissibility of evidence, are usually not questioned by a federal habeas court. 

Seymour v. Walker, 224 F.3d at 552. In addition, federal habeas courts “‘must 

defer to a state court’s interpretation of its own rules of evidence and procedure’ 

when assessing a habeas petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 

2005) (quoting Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)). The trial 

court reviewed this claim on petitioner’s motion for relief from judgment and 

found that the comment was not so inflammatory so as to deny petitioner a fair 

trial. The trial court further found that any effect by the single comment was 

removed with the instructions to the jury that they were the only determiners of 

fact. People v. McGhee, 09-017549-01-FC, at * 7. This Court sitting on federal 

habeas review may not second guess the state court’s conclusion that it was 

permissible for Mr. Tucker to offer lay opinion testimony on this issue; thus, 

petitioner is not entitled to habeas relief on his claim. See Charles v. Thaler, 629 
26 

F. 3d 494, 500 (5th Cir. 2011). 

VI. Claims 6 and 7 - Ineffective Assistance of Counsel Claims

 The Court will consolidate petitioner’s ineffective assistance of counsel 

claims together for judicial clarity. In his sixth claim, petitioner alleges that he 

was denied his constitutional right to the effective assistance of appellate counsel. 

In his seventh claim, petitioner alleges that he was denied due process when the 

state courts declined to hold an evidentiary hearing on petitioner’s ineffective 

assistance of counsel claims. 

Taking petitioner’s seventh claim first, the Court does not have the power to 

grant habeas relief on petitioner’s claim that the state courts failed to conduct an 

evidentiary hearing on his ineffective assistance of counsel claims. There is no 

federal constitutional right to appeal a state court conviction. Cleaver v. 

Bordenkircher, 634 F. 2d 1010, 1011 (6th Cir. 1980). Where a habeas petitioner 

alleges a denial of his or her right to appeal a state criminal conviction, he or she 

is not entitled to federal habeas relief. Tate v. Livesay, 612 F. Supp. 412, 413 

(M.D. Tenn. 1984). In addition, violations of state law and procedure which do 

not infringe specific federal constitutional protections are not cognizable claims 

under Section 2254. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Whether the 

trial court erred in its application of M.C.R. 7.211 in denying petitioner’s motion 

for an evidentiary hearing on his ineffective assistance of counsel claims is a 
27 

question of state law that cannot be reviewed in a federal habeas petition. See 

Hayes v. Prelesnik, 193 Fed. App’x. 577, 584 (6th Cir. 2006). Moreover, there is 

no clearly established Supreme Court law which recognizes a constitutional right 

to a state court evidentiary hearing to develop a claim of ineffective assistance of 

counsel on appeal. Id. at 585. Accordingly, petitioner would not be entitled to 

habeas relief on his seventh claim. 

Even if there is a due process component to petitioner’s claims involving the 

denial of his motion, deprivation of this sort would not form the basis for issuing a 

writ of habeas corpus, but might support a request for an evidentiary hearing in 

this Court for the purpose of developing a record on the petitioner’s ineffective 

assistance of counsel claim. See May v. Renico, 2002 WL 31748845, * 5 (E.D. 

Mich. Nov. 12, 2002). This Court must determine whether petitioner is entitled to 

an evidentiary hearing on his claim. 

 When deciding whether to grant an evidentiary hearing, a federal court must 

consider whether such a hearing could enable the habeas petitioner to prove the 

petition’s factual allegations, which, if true, would entitle the petitioner to federal 

habeas relief on his claim or claims. Schriro v. Landrigan, 550 U.S. 465, 474 

(2007). “[B]ecause the deferential standards prescribed by § 2254 control whether 

to grant habeas relief, a federal court must take into account those standards in 

deciding whether an evidentiary hearing is appropriate.” Id. If the record refutes 
28 

the habeas petitioner’s factual allegations or otherwise precludes habeas relief, a 

district court is not required to hold an evidentiary hearing. Id. A habeas 

petitioner is not entitled to an evidentiary hearing on his claims if they lack merit. 

See Stanford v. Parker, 266 F. 3d 442, 459-60 (6th Cir. 2001). A habeas 

petitioner is also not entitled to an evidentiary hearing on his claims of ineffective 

assistance of counsel where the petitioner fails to allege specific facts which, if 

true, would entitle him to relief on his claims. See Barber v. Birkett, 276 F. Supp. 

2d 700, 706 (E.D. Mich. 2003) (petitioner was not entitled to an evidentiary 

hearing on his claims that he was denied his right to counsel and that his appellate 

counsel rendered ineffective assistance, where he did not assert any facts which, if 

true, would establish a constitutional error). As will be discussed below, 

petitioner’s ineffective assistance of counsel claim is without merit, therefore, he 

is not entitled to an evidentiary hearing on this claim. 

 In his sixth claim, petitioner alleges that appellate counsel was ineffective by 

not holding an evidentiary hearing to ascertain if Juror # 9 biased the jury by 

indicating that he knew a member of the victim’s family. Petitioner further 

alleges that appellate counsel was ineffective by failing to ask for an evidentiary 

hearing to assess trial counsel’s performance in failing to request a Remmer 

hearing, pursuant to People v. Ginther, 390 Mich. 436, 443; 212 N.W. 2d 922 

(1973) and M.C.R. 7.211(C)(1). 
29 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

state, to show a reasonable probability that the result of the proceeding would 

have been different, but for counsel’s allegedly deficient performance. See Wong 
30 

v. Belmontes, 558 U.S. 15, 27 (2009). The Strickland standard applies as well to 

claims of ineffective assistance of appellate counsel. See Whiting v. Burt, 395 F. 

3d 602, 617 (6th Cir. 2005). 

 The trial court judge found that there was no merit to petitioner’s claim that 

a juror’s knowledge of a member of the victim’s family could possibly taint 

another member of the jury. Although Juror # 9 and Juror #11 were employed by 

Ford Motor Company, the trial court found that petitioner’s complaint was based 

on mere speculation that Juror # 11 knew any of the witnesses or family members, 

or that Juror # 11 was biased because he worked for the same company as Juror # 

9 and would be biased because Juror # 9 recognized one of the victim’s family 

members. In fact, Juror # 11 retired from Ford Motor Company five years earlier 

and did not say he knew any of the witnesses or victim’s relatives. People v. 

McGhee, 09-017549-01-FC, at * 4-6. 

 The Sixth Amendment guarantees a defendant the right to the effective 

assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387, 

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

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

463 U.S. 745, 751 (1983). Petitioner’s claim lacks merit. “[A]ppellate counsel 

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

Shaneberger v. Jones, 615 F. 3d 448, 452 (6th Cir. 2010) (quoting Greer v. 
31 

Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Because this claim cannot be shown 

to be meritorious, appellate counsel was not ineffective in the handling of 

petitioner’s direct appeal. Therefore, Petitioner is not entitled to habeas relief on 

his sixth or seventh claims. 

IV. Conclusion 

The Court will deny the petition for writ of habeas corpus. The Court will 

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

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

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

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

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

issues presented were adequate to deserve encouragement to proceed further. 

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

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

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

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

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

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

foll. § 2254. 

 For the reasons stated in this opinion, the Court will deny petitioner a 
32 

certificate of appealability because he has failed to make a substantial showing of 

the denial of a federal constitutional right. Myers v. Straub, 159 F. Supp. 2d 621, 

629 (E.D. Mich. 2001). The Court will also deny petitioner leave to appeal in 

forma pauperis, because the appeal would be frivolous. Id.

V. Conclusion 

 Accordingly, 

 IT IS ORDERED that the Petition for a Writ of Habeas Corpus (ECF No. 

1) is DENIED WITH PREJUDICE;

 IT IS FURTHER ORDERED that a Certificate of Appealability is 

DENIED; 

 IT IS FURTHER ORDERED that Petitioner will be DENIED leave to 

appeal in forma pauperis.

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: May 18, 2017 

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

record and/or pro se parties on this date, May 18, 2017, by electronic and/or U.S. 

First Class mail. 

 s/ R. Loury 

 Case Manager