UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

PAUL POZNIAK, 

 

Petitioner, Case No. 1:14-cv-12649 

 Hon. Thomas L. Ludington 

v. 

 

SHIRLEE HARRY,1 

Respondent. 

___________________________________/ 

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, 

DENYING CERTIFICATE OF APPEALABILITY, GRANTING PERMISSION TO 

APPEAL IN FORMA PAUPERIS, AND DENYING MOTION FOR DISCOVERY

 On July 7, 2014, Michigan Department of Corrections Inmate Paul Pozniak filed this 

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner Pozniak, 

was convicted after a jury trial in the Macomb Circuit Court of first-degree murder. MICH. COMP.

LAWS § 750.316. Petitioner was sentenced to life imprisonment. 

 In the petition, Pozniak asserts eight grounds for relief: (1) insufficient evidence was 

presented at Petitioner’s trial to establish his identity as the perpetrator, (2) Petitioner’s counsel 

was ineffective for failing to object to the admission of testimony, (3) Petitioner was denied his 

right to counsel at a photographic line-up identification procedure, (4) the police and prosecutor 

committed misconduct by misrepresenting the physical evidence, (5) the trial court lacked subject 

matter jurisdiction to try Petitioner, (6) Petitioner was abandoned by his trial counsel for failing to 

                                                            

1

The only proper respondent in a habeas case is the habeas petitioner’s custodian, which in the case of an incarcerated 

habeas petitioner is the warden of the facility where the petitioner is incarcerated. See Edwards Johns, 450 F. Supp. 

2d 755, 757 (E.D. Mich. 2006); See also Rule 2(a), 28 U.S.C. § 2254. Petitioner has been transferred to the Brooks 

Correctional Facility where Shirlee Harry is Warden. 
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raise a jurisdictional challenge, (7) Petitioner was denied the effective assistance of appellate 

counsel, and (8) the prosecutor failed to protect Petitioner’s constitutional rights by proceeding to 

trial in a court without jurisdiction. Petitioner’s claims are without merit or barred by procedural 

defaults which occurred in state court. Therefore, the petition will be denied. For similar reasons, 

Petitioner’s request for a certificate of appealability, permission to appeal in forma pauperis, and 

motion for discovery will be denied. 

I.

 The relevant facts relied upon by the Michigan Court of Appeals are presumed to be 

correct, pursuant to 28 U.S.C. § 2254(e)(1), and will be recited verbatim. See Wagner v. Smith, 

581 F.3d 410, 413 (6th Cir. 2009). 

 Defendant’s conviction arises from the February 23, 2010, strangulation of 

84-year-old Charles Taylor in his home in Warren, Michigan. The prosecution’s 

theory was that defendant, the estranged son of Taylor’s long-time friend, knew 

that Taylor had money, attacked him in his home, ransacked his home looking for 

valuables, and stole his wallet. Defendant’s DNA was discovered on Taylor’s left 

and right hands, as well as the inside of Taylor’s right rear pants pocket, where 

Taylor kept his wallet. At trial, the defense argued that defendant’s DNA was on 

Taylor’s hands because Taylor shook defendant’s hand and hugged him during a 

prior visit, and that a secondary transfer from that contact caused the presence of 

defendant’s DNA inside Taylor’s pants pocket. The defense presented an alibi 

defense, and defendant and his girlfriend both testified that they were together on 

the day of Taylor’s death. 

People v. Pozniak, No. 306405, 2013 WL 331564, at *1 (Mich. Ct. App. Jan. 29, 2013). 

 Following his conviction, Petitioner filed an appeal of right. His appointed appellate 

counsel filed a brief on appeal raising the following two claims: 

I. Defendant’s conviction for first-degree murder should be reversed because the 

prosecution failed to present constitutionally sufficient evidence to sustain his 

conviction, where the only credible evidence in the case seeking to identify Mr. 

Pozniak as the offender was the circumstantial evidence of the presence of his skin 
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cells at the scene, and the prosecution did not prove that those cells could only 

have been left at the house during the alleged commission of the homicide. 

II. Paul Pozniak received constitutionally ineffective assistance of counsel when 

his trial counsel did not timely object to inadmissible testimony, under Michigan 

Rules of Evidence 701 and 801, concerning Alphonse Pozniak’s reaction to his 

son’s arrest in connection with the death of Charles Taylor, testimony which 

should have resulted in multiple objections and a request for a curative jury 

instruction. 

 

 The Michigan Court of Appeals affirmed Petitioner’s conviction in an unpublished 

opinion. Id. Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, 

raising the same two claims that he raised in the Michigan Court of Appeals. The Michigan 

Supreme Court denied the application because it was “not persuaded that the questions presented 

should be reviewed.” People v. Pozniak, 833 N.W.2d 918 (Mich. 2013) (Table). 

 Petitioner initiated the present action by filing a petition for writ of habeas corpus raising 

the two claims he presented to the state courts in his direct appeal. Petitioner also filed a motion to 

stay the case so that he could return to the state courts and pursue relief with respect to what now 

form his third through eighth habeas claims. The Court granted the motion, ECF No. 6, and 

Petitioner filed a motion for relief from judgment in the state trial court, raising his new claims. 

The trial court denied the motion for relief from judgment, finding that each of the new claims 

lacked merit. ECF No. 18, Ex. 13. 

 Petitioner then filed an application for leave to appeal in the Michigan Court of Appeals 

which raised the same claims. The Michigan Court of Appeals denied the delayed application for 

leave to appeal, finding that 

defendant has failed to meet the burden of establishing entitlement to relief under 

MCR 6.508(D). The defendant alleges grounds for relief that could have been 

raised previously and he has failed to establish both good cause for failing to 
‐ 4 - 

previously raise the issues and actual prejudice from the irregularities alleged, and 

ha[d] not established that good cause should be waived. MCR 6.508(D)(3)(a) and 

(b). 

ECF No. 18, Ex. 14 at 1. 

Petitioner filed an application for leave to appeal in the Michigan Supreme Court, but it 

was denied with citation to Rule 6.508(D). People v. Pozniak, 884 N.W.2d 790 (Mich. 2016) 

(Table). 

 Petitioner then returned to this Court and filed an amended petition, raising his third 

through eighth claims, along with a motion to lift the stay and reopen the case. The motion was 

granted. ECF No. 12. Respondent subsequently filed a responsive pleading, and Petitioner filed a 

reply brief indicating that he wished to raise both the claims presented on direct appeal and on 

state post-conviction review in this proceeding. Petitioner also filed a motion for discovery, ECF 

No. 21, seeking information to support his claim that the prosecutor misrepresented the physical 

evidence. 

II.

 28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims raised by 

a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. 

Relief is barred under this section unless the state court adjudication was “contrary to” or resulted 

in an “unreasonable application of” clearly established Supreme Court law. 

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

contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts 

that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless 
‐ 5 - 

arrives at a result different from [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) 

(quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). 

 “[T]he ‘unreasonable application’ prong of the statute permits a federal habeas court to 

‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] 

Court but unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 

539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413). 

 “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)). “Section 2254(d) reflects the view that habeas corpus is a guard against extreme 

malfunctions in the state criminal justice systems, not a substitute for ordinary error correction 

through appeal. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner 

must show that the state court’s ruling on the claim being presented in federal court 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 (internal quotation 

omitted). 

III.

A. 

 Petitioner’s first claim challenges the sufficiency of the evidence presented at trial to 

sustain his conviction. He asserts that there was insufficient evidence admitted at trial to prove 

beyond a reasonable doubt that he was the person who committed the crime. 
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 In reviewing sufficiency-of-the-evidence claims under the AEDPA, the Court must give 

the state court’s judgment a double layer of deference. Brown v. Konteh, 567 F.3d 191, 204–05 

(6th Cir. 2009). The Court first considers whether, viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt. Id. at 205 (citing Jackson, 443 U.S. at 319). Second, even if a rational 

trier of fact could not have found the petitioner guilty beyond a reasonable doubt, the Court must 

defer to the state court’s sufficiency determination as long as it is not unreasonable. Id. (citing 28 

U.S.C. § 2254(d)(2)). 

 After reciting the controlling constitutional standard, the Michigan Court of Appeals 

rejected this claim on the merits as follows: 

 Defendant does not contest that a premeditated murder was committed, but 

asserts that there was no credible evidence that he was the person who committed 

the murder. Because there were no eye-witnesses to the actual crime, defendant’s 

identity as the killer was established by circumstantial evidence. But our deferential 

standard of review “is the same whether the evidence is direct or circumstantial,” 

and it is well established that “circumstantial evidence and reasonable inferences 

arising from that evidence can constitute satisfactory proof of the elements of a 

crime.” Nowack, 462 Mich. at 400 (citation omitted). 

 Evidence was presented that Taylor was a long-time friend of defendant’s 

father, but that defendant had not seen Taylor for more than 30 years. Taylor lived 

alone, had a regular routine, and was known to carry money in his wallet and to 

keep large sums of money in his meticulously organized home. Taylor’s neighbor, 

Dennis Lohmeier, placed defendant on Taylor’s street on the day Taylor was killed. 

Lohmeier selected defendant’s photograph “immediately” from a total of 18 

individuals, presented in three different photo arrays. Lohmeier testified at trial that 

he was 100 percent certain that defendant was the person he observed and 

conversed with about snow removal on the day Taylor died. After their brief 

conversation, Lohmeier observed defendant, who was wearing a dark hooded 

sweatshirt and jeans, walk down the street. Another neighbor, Janice Knoll, 

observed a man wearing a dark hooded sweatshirt and jeans walk up Taylor’s 

walkway to Taylor’s door, and walk directly into Taylor’s house after the door was 
‐ 7 -

opened. This seemed unusual to Knoll because in her 35 years as Taylor’s neighbor, 

he rarely had company. The police found no evidence of a forced entry, although 

Taylor’s bedrooms had been ransacked, as if someone was searching for something. 

 Defendant’s DNA was found on Taylor’s right and left hands and on the 

inside of Taylor’s right rear pants pocket. Testimony indicated that Taylor always 

kept his wallet in his right rear pants pocket. Expert forensic testimony indicated 

that, of the three places that defendant’s skin cells were found, the inside of his 

pants pocket contained the largest source of defendant’s DNA and garnered the 

strongest results. With regard to the presence of his DNA, defendant testified that 

he had taken a 25–mile bus ride from his Pontiac home to visit Taylor on the day 

before Taylor was killed, and that he shook Taylor’s hand and hugged Taylor 

during the visit. Testimony indicated that there was a heavy snowfall on the day 

that defendant claims to have taken the lengthy bus ride to visit Taylor. Defendant 

denied being at Taylor’s house or in Taylor’s neighborhood on the day Taylor was 

killed. 

 Testimony from both defendant and his father, Alphonse Pozniak . . . , 

revealed that defendant had little to no contact with Taylor for several decades 

before visiting him in February 2010. Pozniak testified that the 52–year–old–

defendant last saw Taylor when defendant was 12 or 13 years old, and Pozniak 

could think of no reason why defendant would have gone to Taylor’s house in 

February 2010. Although defendant testified that he had recently reconnected with 

Taylor before Taylor was killed, defendant did not attend Taylor’s funeral and, 

although defendant spoke with his father after supposedly visiting Taylor, 

defendant did not mention that he had seen or talked to Taylor, who was his father’s 

close friend. 

 Viewed in a light most favorable to the prosecution, the evidence of 

Taylor’s known tendencies, Lohmeier’s identification of defendant as being on 

Taylor’s street on the day Taylor was killed, Knoll’s observation of a similarly 

dressed man walking directly into Taylor’s home, the presence of defendant’s DNA 

in Taylor’s back pocket where he kept his wallet, and the evidence that defendant 

had not been in contact with Taylor for many years and had no reason for being at 

Taylor’s home, considered together, was sufficient to enable a rational trier of fact 

to conclude beyond a reasonable doubt that defendant was the person who stole 

Taylor’s wallet and strangled him during the criminal episode. Although defendant 

argues that there was evidence that his DNA could have been transferred innocently 

during a prior visit, and that Lohmeier’s identification of him was not credible, 

these challenges are related to the weight of the evidence rather than its sufficiency. 

People v. Scotts, 80 Mich. App. 1, 9 (1977). These same challenges were presented 

to the jury during cross examination and closing argument. This Court may not 
‐ 8 -

interfere with the jury’s role of determining issues of weight and credibility. Wolfe, 

440 Mich. at 514. The evidence was sufficient to support defendant’s conviction of 

first-degree premeditated murder. 

Pozniak, 2013 WL 331564, at *1–3. 

 This decision was not an objectively unreasonable application of the clearly established 

Supreme Court standard. Although there was no direct evidence identifying Petitioner as the 

perpetrator, there was ample circumstantial evidence supporting the inference that Petitioner 

entered the victim’s house around the time of the robbery-murder and committed the crime. Mere 

suspicion and speculation cannot support logical inferences, United States v. Bennett, 621 F.3d 

1131, 1139 (9th Cir. 2010), but circumstantial evidence and inferences drawn from that evidence 

may be sufficient to sustain a conviction, United States v. Aponte, 619 F.3d 799, 804 (8th Cir. 

2010); United States v. Shabban, 612 F.3d 693, 696 (D.C. Cir. 2010); United States v. Algee, 599 

F.3d 506, 512 (6th Cir. 2010). Therefore, where a verdict relies solely on circumstantial evidence, 

the question the court must answer is whether “each link in the chain of inferences” the jury relied 

upon is “sufficiently strong to avoid a lapse into speculation.” United States v. Moore, 572 F.3d 

334, 337 (7th Cir. 2009). “Complicating matters is that in circumstantial cases ‘we face head-on 

the disturbing truth that guilty verdicts rest on judgments about probabilities and those judgments 

are usually intuitive rather than scientific.’” United States v. Moore, 572 F.3d 334, 337 (7th Cir. 

2009) (quoting Stewart v. Coalter, 48 F.3d 610, 614 (1st Cir. 1995)). 

 Here, the circumstantial evidence presented—as aptly outlined by the Michigan Court of 

Appeals—was sufficiently strong to avoid a lapse into mere speculation. It should be noted that 

Petitioner’s defense was not that he was innocently at the victim’s house on the date of the crime, 
- 9 - 

thus explaining the presence of his DNA on the victim. Rather, Petitioner testified that he was at 

the victim’s home on the previous day and that his DNA must have remained on the victim through 

the following day. ECF No. 18, Ex. 6 at 94–96. In contrast, the eyewitnesses, Dennis Lohmeir, 

and to a limited extent Janice Knoll, placed Petitioner at the scene on the date of the crime. A jury 

may have resolved the factual dispute as to which day Petitioner was at the victim’s house in favor 

of the prosecutor’s witnesses, and that decision may have led the jury to conclude that Petitioner’s 

testimony regarding shaking the victim’s hand and hugging him the previous day was likewise not 

credible. 

 Even so, “the Supreme Court has given little weight to a defendant’s innocent explanation 

of the evidence.” United States v. Nevils, 598 F.3d 1158, 1164 n.2 (9th Cir. 2010). “[I]t is well 

settled that when a defendant ‘offers an innocent explanation for the incriminating facts proved by 

the government, the jury is free to disbelieve it.’” United States v. Hughes, 505 F.3d 578, 594 (6th 

Cir. 2007) (brackets omitted) (quoting United States v. Schreane, 331 F.3d 548, 562 (6th Cir. 

2003)). Accordingly, Petitioner’s claim that his DNA was found on the victim because of an 

encounter with the victim occurring on the previous day, does not render the evidence 

constitutionally insufficient to support the jury’s verdict. Rather, the two eyewitnesses whose 

testimony viewed most favorably to the prosecution placed him at the scene and time of the crime 

when taken together with the evidence that Petitioner’s DNA was found on the victim’s hand and 

in his pocket, was sufficient for the Michigan Court of Appeals to reject Petitioner’s claim without 

unreasonably applying the Jackson standard. Petitioner’s first claim is therefore without merit. 
- 10 - 

B. 

 In his second claim, Petitioner argues that his trial attorney provided ineffective assistance 

of counsel. Petitioner argues that his attorney failed to object to inadmissible hearsay and 

inadmissible lay opinion testimony. Again, after reciting the controlling constitutional standard for 

ineffective assistance of counsel claims, the Michigan Court of Appeals rejected the claim on the 

merits as follows: 

 On direct examination by the prosecutor, Taylor’s daughter, Cassandra 

Skladzien, testified about a telephone call that she made to defendant’s father, 

Alphonse Pozniak, on the day defendant was arrested for Taylor’s murder. The 

following exchange occurred: 

Q. And what was your purpose of calling him? 

A. I was hysterical. I wanted him to know I didn’t blame him. He 

was hysterical that his son would do such a thing. 

* * * 

Q. Was he hysterical as well? 

A. Yes. 

Q. Was he excited, meaning hysterical, excited emotional? 

A. Emotional. 

Q. What, if anything did he say at the time? 

A. He couldn’t believe his son had killed his best friend. [Emphasis 

added.] 

 During defense counsel’s cross-examination of Skladzien, the following 

exchange occurred: 
‐ 11 -

Q. Now, [the prosecutor] asked you about a statement Mr. Alphonse Pozniak made 

when he was excited or—excitable, we’ll say or emotional. That he couldn’t believe 

that Paul had killed his best friend? 

A. Yes. 

* * * 

Q. Are you—are you aware of any specific foundation or reason why he would 

make that statement, other than it being on the news? 

A. No. Other than it being on the news, no. 

 Based on both attorneys’ references to [Alphonse’s] state of mind as excited 

and emotional, it is apparent that the prosecutor sought to present [Alphonse’s] 

statement as an excited utterance under MRE 803(2), and defense counsel evidently 

believed that the statement qualified as an excited utterance. Regardless of whether 

the statement actually qualifies as an exited utterance under MRE 803(2), it is not 

reasonably probable that defendant was prejudiced by the testimony. The record 

reveals that defense counsel adequately addressed the testimony during his 

subsequent cross-examination of Skladzien and [Alphonse]. When questioning 

Skladzien, defense counsel clarified that she was aware of no reason why 

[Alphonse] would make the statement “other than it being on the news.” 

Subsequently, during [Alphonse’s] cross-examination, defense counsel elicited that 

[Alphonse], while “in [an] excited state of mind,” made the statement to Skladzien 

only “because [defendant] was charged with the crime.” Counsel’s crossexamination established that [Alphonse] admittedly knew nothing about the facts 

underlying the charges and that the statement was not based on [Alphonse’s] 

knowledge of any evidence linking defendant to the crime. Defense counsel 

established that [Alphonse] had made the statement only because defendant had 

been arrested. Consequently, defendant cannot establish that he was prejudiced by 

defense counsel’s handling of Skladzien’s testimony. Accordingly, defendant 

cannot establish a claim of ineffective assistance of counsel in this regard. 

Further, defendant’s reliance on MRE 701 is misplaced. Contrary to what 

defendant argues, [Alphonse’s] statement, as relayed through Skladzien, did not 

express an opinion that defendant was capable of murder. Rather, [Alphonse] made 

a statement after hearing that defendant had been arrested for the crime, he clearly 

had no other information, and his statement was not related to any particular 

observations or findings. Because there was no basis for an objection based on 

MRE 701, defendant cannot establish a claim of ineffective assistance of counsel. 

Counsel is not required to make a futile objection. See People v. Snider, 239 Mich. 

App. 393, 425 (2000). 
‐ 12 -

Pozniak, 2013 WL 331564, at *3–4.

 This decision was reasonable. Ineffective-assistance claims are reviewed under the twopart test derived from Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a 

defendant to show that counsel’s performance was deficient and that the deficient performance 

prejudiced the defense such that the defendant was denied a fair trial. Id. at 687. Counsel is 

“strongly presumed to have rendered adequate assistance and made all significant decisions in the 

exercise of reasonable professional judgment.” Id. at 690. The test for prejudice is whether “there 

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

would have been different.” Id. at 694. In habeas review, the question becomes "not whether 

counsel’s actions were reasonable,” but “whether there is any reasonable argument that counsel 

satisfied Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011). 

 The potential unfair prejudice here was the danger that the jury would believe from 

Skladzien’s testimony that Petitioner’s father had additional undisclosed information indicating 

that Petitioner committed the crime. Defense counsel’s subsequent examination of the witness 

dispelled any such danger. When asked, “[a]s far as you know, the only reason [Alphonse] made 

that statement is because he heard that his son had been arrested for this charge,” Skaldzien 

answered, “Yes.” ECF No. 18, Ex. 3 at 113–14. Alphonse Pozniak himself explained that he did 

not have any information regarding his son’s guilt, but that he apologized to Skaldzien “just 

because [Petitioner] was charged with the crime.” ECF No. 18, Ex. 4 at 113–14. Accordingly, the 

manner in which Petitioner’s trial counsel examined the witnesses effectively eliminated the 

possibility that the jury believed that Alphonse had undisclosed information regarding his son’s 

guilt. 
‐ 13 -

 Finally, the state court’s determination that no lay opinion testimony was admitted was 

correct. At no point did Alphonse or Skaldzien testify that Alphonse held an opinion regarding 

Petitioner’s guilt. Again, defense counsel very effectively elicited testimony from Alphonse that 

he had no knowledge at all regarding that evidence of Petitioner’s guilt or innocence. ECF No. 18, 

Ex. 4 at 114. Given this record, the Michigan Court of Appeals did not unreasonably apply the 

Strickland standard in finding that counsel’s performance was not deficient. The claim is therefore 

without merit. 

C. 

 Petitioner’s remaining claims were presented to the state courts in Petitioner’s motion for 

relief from judgment and the appeal that followed it. While the trial court denied Petitioner’s 

motion after rejecting the claims on the merits, the Michigan Court of Appeals denied relief 

because Petitioner “allege[d] grounds for relief that could have been raised previously and . . . 

failed to establish both good cause for failing to raise the issues and actual prejudice from the 

irregularities alleged, and ha[d] not established that good cause should be waived. MCR 

6.508(D)(3)(a) and (b).” People v. Pozniak, No. 328852 (Mich. Ct. App. Sept. 17, 2015). 

 A federal habeas court ordinarily will not review a petitioner’s claims if he “has defaulted 

his federal claims in state court pursuant to an independent and adequate state procedural rule.” 

Coleman v. Thompson, 501 U.S. 722, 750 (1991). “To determine whether the state court rejected 

a petitioner’s claim on procedural grounds, a court looks to ‘the last reasoned state court opinion 

to determine the basis for the state court's rejection of the petitioner’s claim.’” Amos v. Renico, 

683 F.3d 720, 733 (6th Cir. 2012) (quoting Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010) 

(en banc)). Furthermore, the court must presume that, “[w]here there has been one reasoned state 

judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting 
‐ 14 -

the same claim rest upon the same ground.” Guilmette, 624 F.3d at 291-92 (quoting Ylst v. 

Nunnemaker, 501 U.S. 797, 803 (1991)). 

 Here, the Michigan Court of Appeals’ order denying Petitioner leave to appeal was the last 

reasoned state court opinion to reject Petitioner’s third through eighth claims. The state appellate 

court rejected these claims under Michigan Court Rule 6.508(D)(3), “which is an independent and 

adequate state ground sufficient for procedural default that required [Petitioner] to raise these 

claims during his direct appeal.” Amos, 683 F.3d at 733. 

 Where, as here, a petitioner has procedurally defaulted his claims, “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, 501 U.S. at 750. 

 In his seventh habeas claim, Petitioner argues that appellate counsel’s ineffectiveness 

caused his procedural default. Appellate counsel, however, is not required “to raise every nonfrivolous issue on appeal.” Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003). Indeed, 

“‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far 

from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. 

Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751–52 (1983)). 

 Where appellate counsel “presents one argument on appeal rather than another . . . the 

petitioner must demonstrate that the issue not presented ‘was clearly stronger than issues that 

counsel did present’” to establish ineffective assistance of counsel. Caver, 349 F.3d at 348 (quoting

Smith v. Robbins, 528 U.S. 259, 289 (2000)). Because the claims Petitioner raised on postconviction review are not “clearly stronger” than the ones raised by appellate counsel on direct 
‐ 15 -

review, appellate counsel was not ineffective during Petitioner’s direct appeal, and therefore 

Petitioner cannot demonstrate cause. 

1. 

 Petitioner’s third habeas claim asserts that he was denied his right to counsel at the 

photographic line-up identification procedure. The claim is plainly meritless, and certainly not 

clearly stronger than the ones raised by appellate counsel on direct appeal. A criminal defendant 

has no federal constitutional right to have counsel present at an investigative photographic 

identification procedure at which he is identified. United States v. Ash, 413 U.S. 300, 321 (1973); 

Hanks v. Jackson, 123 F. Supp. 2d 1061, 1071 (E.D. Mich. 2000) (explaining that “although the 

Sixth Amendment gives a criminal defendant the right to have counsel present at an in-person 

lineup after the initiation of criminal proceedings against him, there is no corresponding Sixth 

Amendment right to counsel during a photographic display”). 

2. 

 Petitioner asserts in his fourth habeas claim that the investigating officer and the prosecutor 

distorted the evidence and made false statements regarding footprints observed around the victim’s 

residence. This claim is also not clearly stronger than the ones raised on direct appeal. At trial, one 

police officer testified that he saw a set of footprints that led up to a window of the victim’s 

residence and stop there.2 ECF No. 18, Ex. 3 at 68. Petitioner infers from this testimony that the 

perpetrator gained entry from this window, contrary to the prosecutor’s theory of the case that 

Petitioner was let into the house by the victim. Meanwhile, the officer in charge, Detective Robert 

Eidt, testified that he saw a set of footprints lead to a window that was too small to be a point of 

entry, and that the footprints continued farther. ECF No. 18, Ex. 5 at 18–19. Eidt also testified that 

                                                            

2

There was a significant snow storm the day prior to the crime. ECF No. 18, Ex. 5 at 17–18.
‐ 16 -

he checked all possible points of entry, including all windows, found them all locked, and that 

“[n]othing appeared to be pried open or even attempted to be pried open.” Id. at 21–22. Eidt opined 

that the previous officer did not have the same opportunity to investigate the scene as he did. Id.

at 19. Furthermore, a meter reader had been on the premises and walked around the house. Id. at 

20–21. Eidt opined that all the footprints found in the snow around the house were accounted for. 

Id. at 22. 

 To prevail on a claim that a conviction was obtained by evidence that the government knew 

or should have known to be false, a defendant must show that the statements were actually false, 

that the statements were material, and that the prosecutor knew they were false. Coe v. Bell, 161 

F.3d 320, 343 (6th Cir. 1998). The record reveals at most that there was a conflict in the testimony 

between two officers. The prosecutor sought to explain the disparity during the examination of 

Eidt. The prosecutor certainly was not obligated to accept the testimony that was most favorable 

to Petitioner and disregard Eidt’s testimony regarding the footprints. There was no misconduct, 

and Petitioner’s appellate counsel was not ineffective for failing to raise this claim on direct appeal. 

3. 

 In his fifth claim, Petitioner asserts that the trial court lacked jurisdiction to try him. In his 

related sixth and eighth claims Petitioner advances the argument that his counsel abandoned him 

by failing to assert the jurisdictional challenge and that the prosecutor committed misconduct by 

proceeding in a court without jurisdiction. In addressing these claims on collateral review, the trial 

court found that it had jurisdiction over Petitioner’s case. ECF No. 18, Ex. 13 at 4. The 

determination of whether a state court is vested with jurisdiction under state law is a “function of 

the state courts, not the federal judiciary.” Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976); 

Wright v. Angelone, 151 F.3d 151, 157-58 (4th Cir. 1998). A state court’s interpretation of state 
‐ 17 -

jurisdictional issues conclusively establishes jurisdiction for purposes of federal habeas review. 

See Strunk v. Martin, 27 Fed. Appx. 473, 475 (6th Cir. 2001). Given the state court’s finding that 

it had jurisdiction—a determination that cannot be second-guessed here—Petitioner’s appellate 

counsel was not ineffective for failing to raise this claim on direct review. 

 Accordingly, Petitioner’s third through eighth claims are barred from review by 

Petitioner’s state court procedural default and Petitioner’s failure to demonstrate cause to excuse 

the default. As all of Petitioner’s claim are without merit or barred from review, the petition will 

be denied.

D. 

 On March 20, 2018, Petitioner filed motion for discovery, seeking to gather information 

and photographs related to the footprints found around the victim’s home. ECF No. 21. Habeas 

Rule 6(a) permits district courts to authorize discovery in habeas corpus proceedings “if and to the 

extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do 

so.” Rules Governing Section 2254 Cases in the United States District Courts, R. 6(a). However, 

“habeas petitioners have no right to automatic discovery.” Stanford v. Parker, 266 F.3d 442, 460 

(6th Cir. 2001). “Rule 6 embodies the principle that a court must provide discovery in a habeas 

proceeding only ‘where specific allegations before the court show reason to believe that the 

petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to 

relief.’” Williams v. Bagley, 380 F.3d 932, 975 (6th Cir. 2004) (quoting Bracy v. Gramley, 520 

U.S. 899, 908–09 (1997)). 

 Petitioner has failed to demonstrate good cause for the requested discovery. Petitioner’s 

claim that the prosecutor committed misconduct regarding the footprints is procedurally defaulted 

and without merit for the reasons stated above. The conflict in testimony between the two officers 
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was an issue fully explored and argued by the parties at trial. Accordingly, discovery is not 

warranted. 

IV. 

 Before Petitioner may appeal this decision, the Court must determine whether to issue a 

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

appealability may be issued “only if the applicant has made a substantial showing of the denial of 

a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy § 2253(c)(2), Petitioner must show “that 

reasonable jurists could debate whether (or, for that matter, 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, 484 (2000) (citation and 

internal quotation marks omitted). The Court finds that reasonable jurists would not debate the 

resolution of his claims. The Court will therefore deny a certificate of appealability with respect 

all of Petitioner’s claims. The Court will also deny permission to appeal in forma pauperis because 

any appeal of this decision could not be taken in good faith. 28 U.S.C. § 1915(a)(3). 

V. 

 Accordingly, it is ORDERED that Petitioner Pozniak’s petition for a writ of habeas corpus, 

ECF No. 1., is DENIED with prejudice. 

 It is further ORDERED that Petitioner Pozniak’s motion for discovery, ECF No. 21, is 

DENIED. 

 It is further ORDERED that a certificate of appealability and permission to appeal in forma 

pauperis are DENIED.

Dated: May 15, 2018 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 
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PROOF OF SERVICE 

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

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on May 15, 2018. 

 s/Kelly Winslow 

 KELLY WINSLOW, Case Manager