UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Willie Harper,

Petitioner,

v.

Carmen Palmer,

Respondent.

________________________________/

Case No. 14-cv-13699

Judith E. Levy

United States District Judge

OPINION AND ORDER DENYING PETITION FOR WRIT OF 

HABEAS CORPUS [7], CERTIFICATE OF APPEALABILITY, 

AND LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

Willie Harper (“Petitioner”), confined at the Chippewa Correctional 

Facility in Kincheloe, Michigan, has filed an amended pro se petition for 

a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. (Dkt. 7.) In his 

application, Petitioner challenges his conviction of three counts of assault 

with intent to murder, MICH. COMP. LAWS § 750.831; carrying a concealed 

weapon, MICH. COMP. LAWS § 750.227; felon in possession of a firearm, 

MICH. COMP. LAWS § 750.224f; and possession of a firearm during the 

 

1 The judgment of sentence incorrectly reflects that defendant was convicted of 

assault with intent to do great bodily harm less than murder.
2

commission of a felony (felony-firearm), MICH. COMP. LAWS § 750.227b. 

Petitioner was sentenced as a second-offense habitual offender, MICH.

COMP. LAWS § 769.10, to concurrent terms of 25 to 50 years for each count 

of assault with intent to murder, 40 to 60 months for carrying a concealed 

weapon and felon in possession, and a consecutive term of two years for 

felony-firearm. 

For the reasons stated below, the Court denies the petition for a 

writ of habeas corpus. The Court further denies a certificate of 

appealability and leave to appeal in forma pauperis.

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 U.S.C. § 2254(e)(1). Wagner v. Smith, 581 F.3d 

410, 413 (6th Cir. 2009).
3

In Docket No. 308639, defendant appeals as of right his 

convictions resulting from his shooting at three individuals at 

an apartment complex in Detroit, Michigan. Michael Clemons 

and Kevin Miller were with Steven Tee standing behind a 

gate and near a brick wall near the front of the apartment 

complex. Clemons and Miller saw a truck drive by with the 

passenger side facing the complex. Clemons identified 

defendant as driving the vehicle. The car briefly stopped, and 

defendant looked over at the three men. Defendant then 

continued down the road, made a u-turn over the sidewalk, 

drove back toward the apartment building, and stopped in 

front of the gate with the driver’s side facing the complex.

Defendant then extended a semi-automatic gun out of the 

window. Clemons testified that defendant said, “[Y]aw 

thought I was playing and I told you I will be right back.” 

Miller never saw the shooter’s face, but testified that the 

shooter pulled out a gun and said, “I told you I would be back.” 

Clemons saw defendant point the gun at him, Tee, and Miller, 

and start shooting through the gate. Miller dropped to the 

ground while Tee and Clemons ran. Clemons and Miller heard 

the bullets hitting the concrete and bricks of the building. 

When running, Clemons looked back to see where defendant 

was located. Defendant then looked directly at Clemons, shot 

two more times, and hit Clemons in the forehead with one of 

the bullets. Brandon Bunch, a resident of the apartment 

complex, testified and confirmed that Clemons had been shot 

in the head and had a slight wound. Bunch also testified that 

before defendant drove away from the scene, he said “I’ll be 

back.”

Two police officers noticed defendant driving at a high rate of 

speed and disregard a stop sign. They pursued him and saw 
4

that he threw an assault weapon out of the window. 

Defendant continued to flee from the police but when he 

attempted to turn left, he was unsuccessful, and his car struck 

a fence. Defendant ran out of the car and began fleeing on foot. 

He was eventually subdued and arrested, and the gun he 

threw out of the window was recovered. In a written 

statement to the police, defendant admitted that he was at the 

apartment complex because he had been robbed by four males 

two days before the shooting, but he claimed that he only shot 

the gun in the air and ran from the police because he had the 

gun. Clemons and Miller testified that they never saw 

defendant point his gun and fire it in the air. Clemons later 

went to the hospital and received staples and stitches for the 

bullet wound.

********************************************************

In Docket No. 309330, defendant appeals by leave granted his 

plea of no contest to felonious assault and felony-firearm 

relating to his behavior in pursuing a female victim with a 

gun. The trial court ordered defendant to pay $68 in state 

costs per conviction, $130 for the crime victim’s rights fee, 

$600 in court costs, and $400 in attorney fees. Defendant now 

appeals in both dockets on several grounds.2

People v. Harper, Nos. 308639, 309330; 2013 WL 4766677, at *1–2 (Mich. 

Ct. App. Sept. 5, 2013), vacated in part on other grounds by 497 Mich. 885

(2014).

 

2 The facts underlying this conviction were not discussed by the Michigan Court of 

Appeals, as they were not relevant to the issues on appeal.
5

Petitioner’s conviction was affirmed in part and vacated in part on 

appeal. Id. The Michigan Supreme Court denied leave to appeal in 

Docket No. 308639, and ordered the court of appeals to hold in abeyance 

Docket No. 309330 pending decisions in two other cases. People v. 

Harper, 495 Mich. 947 (2014). After those two court of appeals decisions 

were issued, the Michigan Supreme Court vacated the part of the court 

of appeals opinion addressing court costs and remanded for 

reconsideration of this issue, but denied leave to appeal all other aspects 

of Petitioner’s application. People v. Harper, 497 Mich. 885 (2014).

Petitioner now seeks a writ of habeas corpus on the following 

grounds:

I. The Michigan courts unreasonably applied federal law in 

finding that there was no violation of Petitioner’s right to 

effective counsel as guaranteed by the Sixth Amendment, 

where trial counsel failed to object to the absence of Dr. 

Janowicz and Steve Tee, failed to obtain an expert witness, 

failed to object to the admission of medical records where the 

author of said records did not testify, failed to object to 

perjured testimony and other instances of prosecutorial 

misconduct and failed to investigate.

II. The state court unreasonably applied federal law in 

concluding that there was sufficient evidence to support 

Petitioner’s convictions for assault with intent to commit 
6

great bodily harlm [sic]. Therefore, petitioner is entitled to 

issuance of the writ of habeas corpus.

III. The state courts unreasonably applied federal law in 

denying Petitioner a new trial where the prosecutor 

transgressed the bounds of professional conduct by 

denigrating defense witnesses which denied Petitioner a fair 

trial.

IV. Petitioner is entitled to habeas relief where the trial judge 

erroneously scored him 50 points under offense variable 6, 

over defense objection, which caused Petitioner to be 

sentenced based on inaccurate information and to a longer 

minimum term allowed by law. 

(Dkt. 7 at 9.)

II. Legal Standard

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 
7

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 (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 incorrectly.” Id. at 411. “[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)). And “even a strong 
8

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.

Thus, to obtain habeas relief in federal court, a state prisoner is 

required to show that the state court’s rejection of his claim “was so 

lacking in justification that there was an error well understood and 

comprehended in existing law beyond any possibility for fairminded 

disagreement.” 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, ___ U.S. ___, 136 S. Ct. 1149, 1152 (2016). 

III. Analysis

Petitioner raises four separate claims. First, he argues the state 

courts unreasonably applied federal law in rejecting his ineffective 
9

assistance of counsel claims. Second, he argues the state courts 

unreasonably applied federal law in concluding there was sufficient 

evidence to convict him of assault with intent to commit murder. Third, 

he argues the state courts unreasonably applied federal law in denying 

him a new trial despite what Petitioner describes as prosecutorial 

misconduct. Finally, Petitioner argues the trial judge incorrectly scored 

his offense level, causing him to serve a longer sentence than was 

permissible. 

A. Ineffective Assistance of Counsel Claim

Petitioner first contends that the state courts unreasonably applied 

federal law in finding no Sixth Amendment violation because his trial 

counsel was ineffective in (1) failing to object to the introduction of 

medical records prepared by Dr. Janowitz, who did not testify at trial; (2) 

failing to ensure the prosecutor produced Steven Tee as a witness at trial; 

(3) failing to obtain an expert witness; (4) failing to object to perjured 

testimony from Kevin Miller; (5) failing to object to prosecutorial 

misconduct; and (6) failing to investigate and adequately prepare for 

trial. (Dkt. 7 at 34–48.)
10

Respondent argues that Petitioner has procedurally defaulted part 

of this claim because he failed to properly raise the issue before the 

Michigan Court of Appeals. (Dkt. 8 at 28.) Specifically, Respondent 

argues Petitioner is procedurally defaulted from raising two parts of this 

claim: (1) that counsel was ineffective for failing to object to Mr. Tee’s 

absence at trial, and (2) that counsel was ineffective for failing to object 

to the admission of the medical records. (Id.) These two arguments, 

Respondent argues, were not supported in Petitioner’s brief to the 

Michigan Court of Appeals “with citations to the record and to relevant 

legal authority,” which is “tantamount to abandoning [them.]” (Id.) 

While failing to raise claims on direct appeal can result in 

procedural default, the Court declines to find these two claims defaulted. 

The Michigan Court of Appeals stated that “defendant fails to explain or 

cite any authority” to support his arguments, 2013 WL 4766677 at *7, 

but they do not expressly say that he did so little as to “simply [] announce 

a position . . . and then leave it up to [the] Court to discover and 

rationalize the basis for his claims.” People v. Kevorkian, 248 Mich. App. 

373, 389 (2001) (quoting Mitcham v. Detroit, 355 Mich. 182 (1959)). And 

Respondent has not supplied the briefs submitted to the court of appeals, 
11

so this Court is unable to determine whether Petitioner truly failed to 

provide any support for his claims. Accordingly, these two claims are not 

defaulted, and the Court will consider all of Petitioner’s arguments on 

the merits.

To show that he was denied the effective assistance of counsel, a 

defendant must satisfy a two-prong test. First, the petitioner must 

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

performance was so deficient “that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment.” 

Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the 

petitioner must overcome a “strong presumption that counsel’s conduct 

falls within the wide range of reasonable professional assistance; that is, 

the defendant must overcome the presumption that, under the 

circumstances, the challenged action ‘might be considered sound trial 

strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 

(1955)). Second, the petitioner must demonstrate prejudice by showing 

“there is a reasonable probability that, but for counsel’s unprofessional 

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

694. “Strickland’s test for prejudice is a demanding one. ‘The likelihood 
12

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).

And on habeas review of state court determinations, “[t]he question 

‘is not whether a federal court believes the state court’s determination’ 

under the Strickland standard ‘was incorrect but whether that 

determination was unreasonable–a substantially higher threshold.’” 

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. 

Landrigan, 550 U.S. 465, 473 (2007)). Thus, pursuant to 28 U.S.C. 

§ 2254(d)(1), “doubly deferential judicial review” applies to a Strickland

claim brought by a habeas petitioner, id., and “a state court must be 

granted a deference and latitude that are not in operation when the case 

involves review under the Strickland standard itself.” Harrington, 562 

U.S. at 101. 

Because of this doubly deferential standard, the Supreme Court has 

indicated that:

Federal habeas courts must guard against the danger of 

equating unreasonableness under Strickland with 

unreasonableness under § 2254(d). When § 2254(d) applies, 

the question is not whether counsel’s actions were reasonable. 
13

The question is whether there is any reasonable argument 

that counsel satisfied Strickland’s deferential standard.

Harrington, 562 U.S. at 105. Thus, a reviewing court must “affirmatively 

entertain the range of possible ‘reasons [counsel] may have had for 

proceeding’” as he did. Cullen v. Pinholster, 563 U.S. 170, 196 (2011).

Failure to Object to Absence of Dr. Janowicz & Admission of 

Medical Records

Petitioner first argues that the state courts erred in holding that 

trial counsel’s failure to object to the absence of Dr. Janowicz and to the 

admission of medical records he prepared did not violate his Sixth 

Amendment rights. He argues that Dr. Janowicz’s absence and 

admission of the records he prepared violated the Confrontation Clause, 

and counsel was clearly ineffective in failing to object to both of these 

alleged constitutional violations. (Dkt. 7 at 34–40.)

The Confrontation Clause “bars the admission of testimonial 

statements of a witness who did not appear at trial unless he was 

unavailable to testify, and the defendant had had a prior opportunity for 

cross-examination.” United States v. Arnold, 486 F.3d 177, 187 (6th Cir. 

2007) (citing Crawford v. Washington, 541 U.S. 36, 53–54 (2004)). The 
14

scope of this clause is limited to testimonial hearsay. Davis v. 

Washington, 547 U.S. 813, 823–24 (2006). 

Petitioner first argues that trial counsel was ineffective by failing 

to object to the admission of the medical records, claiming a violation of 

the Confrontation Clause.1 But the medical records prepared by Dr. 

Janowicz, the physician and radiologist who treated Steven Tee after the 

incident that gave rise to Petitioner’s convictions, (see Dkt. 8 at 10–11), 

are nontestimonial. The victim, Mr. Clemons, was seeking treatment for 

the injuries sustained in the incident that resulted in Petitioner’s 

conviction, and the records created were done so to provide a diagnosis 

and course of treatment, not in preparation for litigation or to be provided 

to law enforcement. And nothing in the record suggests Dr. Janowicz 

anticipated the records being used in litigation at the time they were 

made. These records are, therefore, nontestimonial, and do not implicate 

the Confrontation Clause. See United States v. Garner, 148 F. App’x 269, 

 

1 Petitioner did not raise this issue in the state courts. There, he argued only that 

admission of the records violated Brady v. Maryland, 373 U.S. 83 (1963). Harper, 

2013 WL 4766677, at *7. Respondent has not argued the claim is defaulted, and the 

Sixth Circuit has counseled that courts “should not embrace sua sponte raising of 

procedural default issues as a matter of course.” Howard v. Bouchard, 405 F.3d 459, 

476 (6th Cir. 2005) (internal citation and quotations omitted). Accordingly, the Court 

will review the claim on the merits.
15

274 (6th Cir. 2005) (introduction of medical records prepared by 

physicians who did not testify at trial did not violate Confrontation 

Clause because records were prepared to obtain disability benefits); see 

also Moses v. Payne, 555 F.3d 742, 755 (9th Cir. 2009) (statements made 

to emergency room physician were nontestimonial); United States v. 

Santos, 589 F.3d 759, 763 (5th Cir. 2009) (same); United States v. 

Peneaux, 432 F.3d 882, 896 (8th Cir. 2005) (statements made to a 

physician seeking to give medical aid in the form of diagnosis or 

treatment are presumptively non-testimonial).

Petitioner relies on Melendez-Diaz v. Massachusetts, 557 U.S. 305, 

311 (2009), to support his argument. But this case only highlights the 

nontestimonial nature of Dr. Janowicz’s records. In Melendez-Diaz, the 

Court held that affidavits prepared for trial by forensic analysts at a 

state-run lab were testimonial. 557 U.S. at 311. This is wholly unlike

medical records prepared by a treating physician for the purpose of 

properly diagnosing and treating a patient.

Because the admission of the medical records did not violate the 

Confrontation Clause, counsel was not objectively deficient and therefore 
16

not ineffective for failing to object to their admission on this basis. United 

States v. Johnson, 581 F.3d 320, 328 (6th Cir. 2009).

Further, because the medical records were nontestimonial, no 

testimonial hearsay was elicited from Dr. Janowicz, and the 

Confrontation Clause does not apply to him. Accordingly, even though 

there was no stipulation or waiver of his presence, Dr. Janowicz was not 

required at trial under the Confrontation Clause.2

Because there is no Confrontation Clause violation with respect to 

the absence of Dr. Janowicz, counsel was not ineffective for failing to 

object to his absence. Further, as the Michigan Court of Appeals held: 

“there is no evidence to suggest that the radiologist would have testified 

favorably for defendant.” Harper, 2013 WL 4766677, at *7. Accordingly, 

the Michigan Court of Appeals reasonably concluded that Petitioner “has 

not demonstrated that his counsel behaved objectively unreasonably or 

that the result of the trial would have been different.” Harper, 2013 WL 

4766677, at *7. Petitioner is not entitled to relief on this claim.

 

2 To the extent that Petitioner argues the prosecutor was required to present Dr. 

Janowicz, at most, this argument is governed by state law. Violations of state law 

and procedure which do not infringe on specific federal constitutional protections are 

not cognizable claims under section 2254. Estelle v. McGuire, 502 U.S. 62, 67–68 

(1991).
17

Failure to Disclose Medical Records

As part of his argument that trial counsel was ineffective for failing 

to object to admission of medical records, Petitioner also claims that the 

medical records were not turned over to the defense early enough to 

prepare for trial, allegedly in violation of Brady v. Maryland, 373 U.S. 83 

(1963). (Dkt. 7 at 44.)

Failure to disclose information may give rise to a cognizable claim 

if the information was material under Brady, and “there is a reasonable 

probability that, had the evidence been disclosed, the result of the trial 

would have been different.” United States v. Bencs, 28 F.3d 555, 560 (6th 

Cir. 1994). Materiality pertains to the issue of guilt or innocence, and 

not to the defendant’s ability to prepare for trial. United States v. Agurs, 

427 U.S. 97, 112 n.20 (1976). And where, as here, the issue is not a 

complete failure to disclose, but is instead delay, such “[d]elay only 

violates Brady when the delay itself causes prejudice.” 28 F.3d at 561 

(quoting United States v. Patrick, 965 F.2d 1390, 1400 (6th Cir. 1992), 

vacated and remanded on other grounds, 507 U.S. 956 (1993)). Whether 

delay causes prejudice “is really just a type of inquiry into materiality”; 

thus, “a defendant must show what he would have done differently had 
18

he been given more time . . . and specifically how, had the evidence been 

given to the defendant earlier, a reasonable probability exists that the 

result of the defendant’s trial would have been different.” United States 

v. Spry, 238 F. App’x 142, 147–48 (6th Cir. 2007). 

In this case, Petitioner has failed to offer any evidence or argument 

to show that any of the medical records contained exculpatory material. 

Allegations that are merely conclusory or which are purely speculative 

cannot support a Brady claim. Burns v. Lafler, 328 F. Supp. 2d 711, 724

(E.D. Mich. 2004) (internal citation omitted). Moreover, Petitioner is 

unable to show that he was prejudiced by the allegedly late disclosure of 

the medical records because he failed to present what he or counsel would 

have done differently had the medical records been disclosed at an earlier 

point in time. Thus, he has not demonstrated that there is a reasonable 

probability the outcome of the trial would have been different had the 

records been disclosed sooner.

For these reasons, the Michigan Court of Appeals reasonably 

applied federal law in finding “[t]here is no basis to conclude that 

a Brady violation occurred or that defense counsel was ineffective for 
19

failing to raise this issue below.” Harper, 2013 WL 4766677, at *7. 

Accordingly, Petitioner is not entitled to relief on this claim.

Failure to Object to Absence of Steven Tee

As with Dr. Janowicz, Petitioner claims that trial counsel was 

ineffective for failing to object to the absence of Steven Tee because he 

had a right to confront the victim of the crime of which he was accused. 

But the right to confrontation extends only to individuals who provide 

testimonial statements, whether in or out of court, against a defendant. 

Crawford v. Washington, 541 U.S. 36, 50–51 (2004). And Petitioner 

himself admits that “Mr. Tee did not testify and no out of court 

statements made by Mr. Tee was [sic] admitted into evidence.” (Dkt. 7 

at 41.) Thus, the Confrontation Clause was not violated, and counsel 

cannot be held constitutionally deficient for failing to raise this claim. 

Accordingly, the state courts reasonably applied federal law in finding 

that Petitioner “failed to establish that he was denied the effective 

assistance of counsel.” Harper, 2013 WL 4766677, at *7. Petitioner is 

not entitled to relief on this claim.
20

Failure to Obtain Expert Witness

Petitioner next argues that trial counsel was ineffective by failing 

to obtain an expert witness to rebut Clemons’ injuries, arguing an expert 

would testify that the injuries were not caused by Petitioner’s gun. (Dkt. 

7 at 42–43.)3

An ineffective assistance of counsel claim based on failure to call an 

expert witness cannot be based on speculation. Keith v. Mitchell, 455 

F.3d 662, 672 (6th Cir. 2006). Here, Petitioner has offered no evidence to 

show there was or is an expert who would have impeached the victim’s 

testimony concerning the nature or source of his injuries. Thus, 

Petitioner cannot show counsel’s performance was unreasonable nor can 

he show prejudice. Accordingly, Petitioner is not entitled to a writ of 

habeas corpus on this claim.

Failure to Object to Perjured Testimony

Petitioner claims that the state courts unreasonably concluded that 

trial counsel was not ineffective by failing to object to perjured testimony 

given by Kevin Miller. (Dkt. 7 at 44–45.) Citing to the trial transcript 

 

3 It does not appear that Petitioner raised this claim in the state courts. But the 

Court will consider the claim on the merits for the same reasons set forth in footnote 

2.
21

from March 15, 2013, he argues that Mr. Miller testified at the

preliminary examination that Petitioner did not aim the gun at anyone, 

but Miller changed his testimony at trial, and his attorney was ineffective 

for failing to object to this instance of perjury. (Dkt. 7 at 45 (citing Tr. at 

76:7-25).) 

The “deliberate deception of a court and jurors by the presentation 

of known false evidence is incompatible with the ‘rudimentary demands 

of justice.’” Giglio v. United States, 405 U.S. 150, 153 (1972) (quoting 

Mooney v. Holohan, 294 U.S. 103, 112 (1935)). The same is true even if 

a prosecutor “although not soliciting false evidence, allows it to go 

uncorrected when it appears.” Id. (quoting Napue v. Illinois, 360 U.S. 

264, 269 (1959)). To prevail on “a claim of prosecutorial misconduct or 

denial of due process, the defendant must show that the statement in 

question was actually false, that the statement was material, and that 

the prosecutor knew it was false. Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 

1998) (quoting United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 

1989)). Further, the statement in question must be “indisputably false,”

not just misleading. Byrd v. Collins, 209 F.3d 486, 517–18 (6th Cir. 

2000). 
22

Mere inconsistencies in a witness’ testimony do not establish the 

knowing use of false testimony by the prosecutor. Coe, 161 F.3d at 343. 

Additionally, the fact that a witness contradicts himself or changes his 

story does not establish perjury. Drain v. Woods, 902 F. Supp. 2d 1006, 

1030 (E.D. Mich. 2012) (citing United States v. Lebon, 4 F.3d 1, 2 (1st Cir. 

1993)).

Here, despite Petitioner’s allegation that Mr. Miller changed his 

story, the record reflects that his trial testimony was consistent with the

preliminary examination testimony. During the preliminary 

examination, Mr. Miller testified that Petitioner “point[ed] the gun 

‘[s]traight, straight out the window.’” Harper, 2013 WL 4766677, at *8. 

And at trial, he testified that Petitioner pointed a gun out of a car 

window, without aiming at anyone, when the initial shots were fired. (Tr. 

(Mar. 15, 2013) at 76–77).

Because there were no inconsistencies in Mr. Miller’s testimony,

Petitioner lacks any evidence to suggest the trial testimony was false and 

that the prosecutor knew it to be false. Thus, there was no perjury to 

object to, and the Michigan Court of Appeals reasonably determined that 

Petitioner “failed to demonstrate that his counsel behaved objectively 
23

unreasonably or that any perceived error prejudiced him.” Harper, 2013 

WL 4766677, at *8. Brown v. Burt, 65 F. App’x 939, 942 (6th Cir. 2003).

Failure to Object to Prosecutorial Misconduct

Petitioner next contends that counsel was ineffective for failing to 

object to the prosecutor’s inappropriate attacks on the credibility of the 

defense witnesses, which Petitioner raises as a separate claim of 

prosecutorial misconduct below. (Dkt. 7 at 45–46.)4

To show prejudice under Strickland for failing to object to 

prosecutorial misconduct, a habeas petitioner must show that but for the 

alleged error of his trial counsel in failing to object to the prosecutor’s 

improper questions and arguments, there is a reasonable probability that 

the outcome of the proceeding would have been different. Hinkle v. 

Randle, 271 F.3d 239, 245 (6th Cir. 2001). 

Prosecutors may not “comment on the credibility of a witness” to a 

jury, Hodge v. Hurley, 426 F.3d 368, 378 (6th Cir. 2005), but may suggest 

to a jury that a witness is not credible provided this is “coupled with a 

 

4 Again, it does not appear Petitioner raised this claim in the state courts. The Court 

will nonetheless review it on the merits for the reasons set forth in footnote 2.
24

detailed analysis of the record.” Cristini v. McKee, 526 F.3d 888, 902 (6th 

Cir. 2008). 

As set forth below, the state courts found that the prosecutor’s 

comments did not constitute misconduct because they were drawn from 

the facts and evidence presented at trial. Further, the “prosecutor did 

not imply that she had some type of special knowledge regarding the 

witnesses’ credibility.” Harper, 2013 WL 4766677, at *10. For example, 

the prosecutor stated certain witnesses should not be believed because 

they were not present during the shooting. Id. The prosecutor was not 

presenting a personal view, but comments, viewed in context, that were 

“coupled with a detailed analysis of the record.” Cristini, 526 F.3d at 902. 

In sum, there was no prosecutorial misconduct to object to, and counsel 

was not ineffective for failing to object during the closing. Id. 

Accordingly, Petitioner is not entitled to habeas relief on the basis of this 

claim.

Failure to Investigate

Petitioner alleges that trial counsel failed to investigate Steven Tee 

and did not adequately defend against the claim that Petitioner 

attempted to murder him. Specifically, Petitioner argues that “Trial 
25

counsel neglected to investigate evidence that the alleged complainant 

Michael Clemons was the uncle of an individual nick-named ‘Mook.’ This 

‘Mook’ Character was mentioned in police reports taken at the scene and 

identified as one of the men that previously robbed the Petitioner.” (Dkt. 

7 at 48.) Petitioner claims that an investigation would have uncovered 

information used to impeach Mr. Clemons’ testimony about receiving 

staples in his head, and “would have informed the jury of Clemons’ 

potential motive to testify falsely.” (Id.)5

“A particular decision not to investigate must be directly assessed 

for reasonableness in all the circumstances, applying a heavy measure of 

deference to counsel’s judgments.” Wiggins v. Smith, 539 U.S. 510, 521–

22 (2003) (quoting Strickland, 466 U.S. at 690–91). And “[i]n assessing 

prejudice, [a court] reweigh[s] the evidence in aggravation against the 

totality of available mitigating evidence.” Wiggins, 539 U.S. at 534.

Here, assuming that defense counsel acted unreasonably in failing 

to investigate ‘Mook,’ Petitioner cannot demonstrate prejudice from this 

decision. First, even if ‘Mook’ had been found, Petitioner provides no 

 

5 Petitioner does not appear to have raised this claim in the state courts. Again, the 

Court will review the claim on the merits for the reasons set forth in footnote 2.
26

evidence to suggest he would have contradicted Mr. Clemons’ testimony

with respect to the medical treatment received or corroborated the claim 

that he previously robbed Petitioner. And, as set forth above, an 

ineffective assistance of counsel claim for failure to produce a witness 

cannot be based on speculation about what the witness would say. 

Further, Mr. Clemons was not the only witness who testified about 

the extent of his injuries or Petitioner’s conduct. Brandon Bunch and 

Lana Rice, residents of the apartment complex, testified that Mr. 

Clemons was struck in the forehead. Mr. Bunch also testified that 

Petitioner said, “I’ll be back,” before driving away. Shavonte Rice and 

Kevin Miller also testified that they never saw Petitioner aim the gun at 

anyone. Given that defense counsel put on a number of witnesses in 

addition to Mr. Clemons, and who offered both inculpating and 

exculpating testimony, Petitioner has not shown a reasonable probability 

that the outcome of the trial would have been different if ‘Mook’ had 

testified, and he is not entitled to relief on this claim.6 See English v. 

Romanowski, 602 F.3d 714, 729 (6th Cir. 2010) (finding prejudice but 

 

6 See also analysis of the sufficiency of the evidence claim below.
27

only after counsel said that had he learned about a witness’ problems 

before trial, he would not have presented key witness at trial).

B. Sufficiency of the Evidence Claim

Petitioner alleges that the state courts unreasonably applied 

federal law in concluding there was sufficient evidence to support his 

conviction for assault with intent to commit murder. (Dkt. 7 at 48–51.)

It is beyond question that “the Due Process Clause protects the 

accused against conviction except upon proof beyond a reasonable doubt 

of every fact necessary to constitute the crime with which he is charged.”

In re Winship, 397 U.S. 358, 364 (1970). But “the critical inquiry on 

review of the sufficiency of the evidence to support a criminal conviction 

. . . [is] whether the record evidence could reasonably support a finding 

of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 

318 (1979). A court need not “ask itself whether it believes that the 

evidence at the trial established guilt beyond a reasonable doubt,” but 

must ask itself “whether, after viewing the evidence in the light most 

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

the essential elements of the crime beyond a reasonable doubt. Id. at 

318–19 (internal citation and footnote omitted) (emphasis in original). 
28

More importantly, a federal habeas court may not overturn a state 

court decision that rejects a sufficiency of the evidence claim simply 

because the federal court disagrees with the state court’s resolution of 

that claim. Instead, a federal court may grant habeas relief only if the 

state court decision was an objectively unreasonable application of the 

Jackson standard. See Cavazos v. Smith, 565 U.S. 1, 2 (2011). In other 

words, “the only question under Jackson is whether that finding was so 

insupportable as to fall below the threshold of bare rationality.” Coleman 

v. Johnson, 566 U.S. 650, 656 (2012). 

Under Michigan law, the elements of assault with intent to commit 

murder in Michigan are (1) an assault; (2) with an actual intent to kill;

(3) which if successful, would make the killing murder. Warren v. Smith, 

161 F.3d 358, 361 (6th Cir. 1998) (quoting People v. Plummer, 229 Mich. 

App. 293, 305 (1998)). 

The intent to kill element does not equate with murder. Warren, 

161 F.3d at 361 (citing People v. Taylor, 422 Mich. 554 (1985)). But “[a]

specific intent to kill is the only form of malice that supports a conviction 

of assault with intent to commit murder.” Johnigan v. Elo, 207 F. Supp. 

2d. 599, 608 (E.D. Mich. 2002) (citing Maher v. People, 10 Mich. 212, 216–
29

17 (1862)). “A finding that defendant had formed the specific intent to 

kill when he pointed his weapon at the victim is sufficient to support a 

conviction of assault with intent to commit murder.” Id. (citing People v. 

Bailey, 451 Mich. 657, 667, 669 (1996); People v. Gjidoda, 140 Mich. App. 

294, 297 (1985)).

In determining intent, the trier of fact “may, and should take into 

consideration the nature of the defendant’s acts constituting the assault; 

the temper or disposition of mind with which they were apparently 

performed, whether the instrument and means used were naturally 

adapted to produce death, his conduct and declarations prior to, at the 

time, and after the assault, and all other circumstances calculated to 

throw light upon the intention with which the assault was made.” Taylor, 

422 Mich. at 568 (quoting Roberts v. People, 19 Mich. 401, 415–16 (1870); 

Maher v. People, 10 Mich. 212, 217–18 (1862)).

The Michigan Court of Appeals rejected Petitioner’s sufficiency of 

the evidence claim as follows:

Moreover, a review of the evidence demonstrates that there 

was sufficient evidence to support defendant’s conviction. 

Defendant drove to the apartment complex with a gun 

because he had been robbed at that location a couple days 

prior. He drove by the three victims, paused, and looked in 
30

their direction. He then made a u-turn and drove on the 

sidewalk until he was near the victims. He stated, “yaw 

thought I was playing and I told you I will be right back.” He 

then fired multiple shots in the victims’ direction, hitting one 

of them in the forehead. Clemons testified that before 

defendant shot him in the forehead, defendant looked directly 

at him and deliberately fired two more shots.

Thus, there was sufficient evidence that defendant committed 

an assault, he had the intent to kill, and the killing would 

have been a murder. While there was conflicting evidence 

about whether defendant shot the bullets up in the air, all 

conflicts in the evidence are resolved in favor of the 

prosecution and we will not second-guess the jury’s 

determinations regarding the weight or credibility of the 

evidence. Therefore, we find that defendant’s convictions were 

supported by legally sufficient evidence.

Harper, 2013 WL 4766677, at *9–10 (internal citations omitted).

It is clear that there was sufficient evidence for a rational trier of 

fact to conclude that Petitioner specifically intended to kill the three 

victims. At most, Petitioner points out conflicting testimony, but a 

federal habeas court has “no license to redetermine the credibility of the 

witnesses whose demeanor was observed at trial.” Marshall v. 

Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder 

to weigh the probative value of the evidence and resolve any conflicts in 

testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992) (citing 
31

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly, Petitioner is 

not entitled to relief on this claim. See Tyler v. Mitchell, 416 F.3d 500, 

505 (6th Cir. 2005). 

C. Prosecutorial Misconduct

Petitioner alleges that the prosecutor improperly commented on the 

credibility of several defense witnesses during closing arguments, and 

the state courts erred in finding he was not entitled to a new trial based 

on this alleged misconduct. (Dkt. 7-1 at 1–3.) Petitioner specifically 

argues it was improper for the prosecutor to tell the jury “not to believe 

none [sic] of the defense witnesses,” or “had some other motive to testify 

and take photos than that of good faith.” (Id. at 2.) Respondent argues 

Petitioner procedurally defaulted this claim by failing to object to it at 

trial, and the Michigan Court of Appeals’ review of the claim for plain 

error constitutes default. (Dkt. 8 at 47.)

Petitioner argues any procedural default should be excused because 

the claim “was not rejected on an independent and adequate state 

procedural rule.” (Dkt. 11 at 1.) 

The Michigan Court of Appeals addressed Petitioner’s allegations 

of prosecutorial misconduct as follows:
32

Lastly, in defendant's Standard 4 brief in Docket No. 308639, 

he contends that there was prosecutorial misconduct. An 

unpreserved claim is reviewed only for plain error affecting 

substantial rights. People v. Carines, 460 Mich. 750, 763–764; 

597 NW2d 130 (1999). An error must have occurred, it must 

be plain, and it must have affected the outcome of the 

proceedings. Id.

B. Analysis

Defendant first attacks the prosecution's statements in 

closing argument that the jury should not believe the defense 

witnesses. However, the prosecution specifically stated that 

the jury should not believe these witnesses because there was 

no evidence that they were even present at the shooting. A 

prosecutor is allowed to present “arguments from the facts 

and testimony that the witnesses at issue were credible or 

worthy of belief.” People v. Dobek, 274 Mich.App 58, 66; 732 

NW2d 546 (2007). The prosecutor did not imply that she had 

some type of special knowledge regarding the witnesses' 

credibility. Id.

Moreover, while the prosecution did comment on a defense 

witness's credibility regarding the pictures she took at the 

apartment building, this again was an argument derived from 

the evidence. The prosecution noted that this witness did not 

see shots being fired and the pictures were not taken at the 

time of the crime, so this witness lacked credibility and her 

testimony should be given little weight. Because these 

comments were arguments based on the evidence at trial, 

they were proper. Dobek, 274 Mich.App at 66.
33

Finally, the jury was specifically instructed that the 

prosecution's statements were not evidence. “Jurors are 

presumed to follow their instructions, and instructions are 

presumed to cure most errors.” People v. Abraham, 256 

Mich.App 265, 279; 662 NW2d 836 (2003). Defendant has not 

established any plain error requiring reversal.

Harper, 2013 WL 4766677, at *10.

“Michigan has a contemporaneous objection rule,” and this rule 

“constitutes an adequate and independent state ground for foreclosing 

habeas review.” Taylor v. McKee, 649 F.3d 446, 450–51 (6th Cir. 2011). 

If an appellate court nonetheless reviews the claim on direct appeal, it is 

done under the plain error standard, and is considered “the enforcement 

of a procedural default” rather than a ruling on the merits. Hinkle v. 

Randle, 271 F.3d 239, 244 (6th Cir. 2001). 

Here, it is clear that the Michigan Court of Appeals was enforcing 

the contemporaneous objection rule, as evidenced by the court’s 

statement that the claim was “unpreserved” and would be reviewed for 

plain error. Thus, the court of appeals’ decision rested on an adequate 

and independent state ground, and Petitioner’s claim is procedurally 

defaulted.
34

D. Sentencing Guidelines Claim

Petitioner’s final claim is that the trial court erred in scoring 

Offense Variable 6 at 50 points, arguing the reliance on judge-found facts 

violated his Sixth Amendment rights pursuant to Alleyne v. United 

States, ___ U.S. ___, 133 S. Ct. 2151 (2013), and the court miscalculated 

under state law. 

First, Petitioner argues that the trial judge violated his Sixth 

Amendment right to a jury trial by using facts that should have been, but 

were not, submitted to a jury to score the offense variables and calculate 

a sentencing guidelines range. 

The “essential Sixth Amendment inquiry is whether a fact is an 

element of the crime.” Alleyne, 133 S. Ct. at 2162. And a fact that is an 

element must be submitted to a jury and proven beyond a reasonable 

doubt if it alters the prescribed statutory maximum. Blakely v. 

Washington, 542 U.S. 296 (2004); Apprendi v. New Jersey, 530 U.S. 466 

(2000). This same rule applies to facts that increase statutorilyprescribed minimums. Alleyne, 133 S. Ct. at 2155.

Contrary to Petitioner’s claim, Alleyne does not apply to his case 

because the trial court did not use judge-found facts to increase either a 
35

mandatory minimum or maximum. And neither Apprendi nor Alleyne

hold that any fact that influences judicial discretion must be found by a 

jury. Alleyne, 133 S. Ct. at 2163. As set forth above, these holdings 

require facts relevant to sentencing to be submitted to a jury only if they 

affect whether a defendant must be sentenced to a statutorily-mandated 

sentence. See United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014); 

see also United States v. James, 575 F. App’x 588, 595 (6th Cir. 2014) 

(collecting cases and noting that at least four post-Alleyne unanimous 

panels of the Sixth Circuit have “taken for granted that the rule of 

Alleyne applies only to mandatory minimum sentences”); Saccoccia v. 

Farley, 573 F. App’x 483, 485 (6th Cir. 2014) (“But Alleyne held only that 

‘facts that increase a mandatory statutory minimum [are] part of the 

substantive offense.’...It said nothing about guidelines sentencing 

factors....”).

The Michigan Supreme Court recently held that Michigan’s 

Sentencing Guidelines scheme violates the Sixth Amendment right to a 

jury trial pursuant to Alleyne. People v. Lockridge, 498 Mich. 358 (2015). 

However, Petitioner cannot rely on Lockridge to obtain relief with this 

Court. “The AEDPA prohibits use of lower court decisions in determining 
36

whether the state court decision is contrary to, or an unreasonable 

application of, clearly established federal law.” Miller v. Straub, 299 F.3d 

570, 578–79 (6th Cir. 2002). In other words, “Lockridge does not render 

the result ‘clearly established’ for purposes of habeas review.” Haller v. 

Campbell, No. 1:16-CV-206, 2016 WL 1068744, at *5 (W.D. Mich. Mar. 

18, 2016). Further, because the Sixth Circuit has ruled that Alleyne does 

not apply to sentencing guidelines factors, reasonable jurists could 

disagree about whether Alleyne applies to the calculation of Michigan’s 

minimum sentencing guidelines, and “Alleyne therefore did not clearly 

establish the unconstitutionality of the Michigan sentencing scheme.” 

Id. at *6; see also Perez v. Rivard, No. 2:14-CV-12326, 2015 WL 3620426, 

at *12 (E.D. Mich. June 9, 2015). Thus, whether Alleyne applies to 

Michigan’s sentencing guidelines is not clearly established, and 

Petitioner is not entitled to relief on this ground.

Petitioner next argues the trial court erred in calculating his 

sentencing guidelines range. Because the federal constitutional claim is 

meritless, Petitioner’s claim of error in scoring is a claim founded on state 

law. Errors in the application of state sentencing guidelines are not 

sufficient to independently support habeas relief. Kissner v. Palmer, 826
37

F.3d 898, 904 (6th Cir. 2016); see Estelle v. McGuire, 502 U.S. 62, 68 

(1991). As such, Petitioner’s challenge to the trial court’s application of 

the Michigan sentencing guidelines is not cognizable on federal habeas 

review. Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007); Howard 

v. White, 76 F. App’x 52, 53 (6th Cir. 2003). Accordingly, Petitioner’s 

claim is dismissed.

IV. Conclusion

The Court denies the petition for a writ of habeas corpus. The Court 

also denies a certificate of appealability. 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 after a district court has rejected 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. Slack v. McDaniel, 529 

U.S. 473, 484 (2000).

For the reasons stated in this opinion, Petitioner has failed to make 

a substantial showing of the denial of his constitutional rights, and the 

Court will therefore deny Petitioner a certificate of appealability.
38

The Court further concludes that Petitioner will not be granted 

leave to proceed on appeal in forma pauperis because any appeal would 

be frivolous. See Fed. R. App. P. 24(a).

V. Order

Accordingly, the Court DENIES WITH PREJUDICE the petition 

for a writ of habeas corpus. (Dkt. 7.) 

The Court further DENIES a certificate of appealability and leave 

to appeal in forma pauperis.

IT IS SO ORDERED.

Dated: June 29, 2017 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY

United States District Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on June 29, 2017.

s/Shawna Burns

SHAWNA BURNS

Case Manager