UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

TYRONE BOSWELL, 

 Petitioner, Case No. 14-cv-12705 

 JUDGE GERSHWIN A. DRAIN

v. 

 

LORI GIDLEY AND DUNCAN MCLAREN, 

 

 Respondents. 

_____________________________________/ 

OPINION AND ORDER 

DENYING THE AMENDED HABEAS CORPUS PETITION,

DENYING A CERTIFICATE OF APPEALABILITY, AND

GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

 This matter has come before the Court on Petitioner Tyrone Boswell’s 

Amended Petition for the Writ of Habeas Corpus under 28 U.S.C. § 2254. 

Petitioner challenges his Wayne County, Michigan conviction for first-degree, 

felony murder, MICH. COMP. LAWS § 750.316(1)(b). In his Amended Petition, 

Petitioner alleges as grounds for relief that the prosecution’s proofs were 

insufficient and against the great weight of the evidence, his trial and appellate 

attorneys were ineffective, the officer in charge of the case committed perjury, and 

the trial judge was biased. The State urges the Court to deny the Amended Petition 

because some of Petitioner’s claims are procedurally defaulted, one of the claims is 
2

not cognizable on habeas review, and the state appellate court’s rejection of 

Petitioner’s claims was reasonable. The Court agrees that Petitioner’s claims do 

not warrant relief. Accordingly, the Amended Petition will be denied. 

 I. BACKGROUND

 Petitioner waived his right to a jury trial and was tried before a judge in 

Wayne County Circuit Court. The state appellate court accurately summarized the 

evidence at trial as follows: 

[T]his case involves the murder of, and larceny from, Michael Yost, 

who lived on Muirland in Detroit with his girlfriend, Kimberly 

Burrell. On the night of June 13, 2009, Yost, carrying at least $200 

cash in his wallet and wearing an $800 silver watch encrusted with 

diamonds, left the home he shared with Burrell to walk to a Marathon 

gas station near his home. On the way to the gas station, Yost came 

into contact with defendant and a man who defendant referred to as 

Dirt, but who police learned went by the name “Mudd.” Defendant 

and Dirt were the last two people seen with Yost before he was shot in 

the back of the head and his wallet and watch were stolen. 

People v. Boswell, No. 307342, 2013 WL 3814345, at *1 (Mich. Ct. App. July 23, 

2013) (unpublished). Eyewitnesses Shanise Tipton and Deante Simmons were 

able to identify the suspects by their clothing. 

 The prosecution’s theory was that, at a minimum, Petitioner aided and 

abetted his accomplice in killing Yost during the commission of a larceny. 

Petitioner did not testify or present any witnesses. His defense was that he was 

merely present at the crime scene and that, at most, he was guilty of a larceny. 
3

 The trial court, as the trier of fact, found Tipton and Simmons to be credible 

because they were unbiased and had no motive for lying. The court noted that 

Tipton never equivocated about what she saw and that Petitioner corroborated 

Tipton’s and Simmons’ testimony when he admitted to a police officer that he was 

present at the crime scene when the shooting occurred. The trial court concluded 

that Petitioner worked in tandem with “Dirt” and was guilty, as charged, of felony 

murder. See 10/14/11 Trial Tr., at 3-44, Dkt. No. 13-6, pp. 3-44 (Pg. ID 628-669). 

The trial court sentenced Petitioner to mandatory life imprisonment without the 

possibility of parole. See 11/4/11 Sentence Tr., at 12, Dkt. No. 13-7, p. 12 (Pg. ID 

682). 

 In an appeal of right, Petitioner argued through his first appellate attorney 

that the prosecution failed to introduce legally sufficient evidence to support his 

conviction beyond a reasonable doubt. Petitioner filed a supplemental brief 

through substitute appellate counsel, arguing that there was insufficient evidence of 

his guilt, the verdict was against the great weight of the evidence, and he was 

denied the effective assistance of trial counsel by counsel’s failure to adequately 

consult with him, visit the crime scene, and interview res gestae witnesses. After 

substitute counsel was permitted to withdraw from the case, a third attorney was 

appointed to represent Petitioner on appeal, and that attorney filed a supplemental 

brief which alleged that trial counsel was ineffective for failing to call certain 
4

witnesses. The Michigan Court of Appeals rejected Petitioner’s claims and 

affirmed his conviction in an unpublished opinion. See Boswell, 2013 WL 

3814345. Although Petitioner claims that he submitted an application for leave to 

appeal in the Michigan Supreme Court, the state supreme court has no record of 

the application. See Larry Royster’s Affidavit, Dkt. No. 13-9, p. 1 (Pg. ID 921). 

 In 2014, Petitioner commenced this case. See Pet. for Writ of Habeas 

Corpus, Dkt. No. 1. The petition raised two grounds for relief: insufficient 

evidence of guilt and ineffective assistance of trial counsel (failure to call certain 

witnesses). See id., at 6, 8, Dkt. No. 1, pp. 6, 8 (Pg. ID 6, 8). 

 Petitioner simultaneously moved to hold his habeas petition in abeyance 

while he pursued state remedies for three new claims. See Mot., at 1-4, Dkt. No. 2, 

pp. 1-4 (Pg. ID 148-151). On August 13, 2014, the Court granted Petitioner’s 

motion and closed this case for administrative purposes. See Order, at 1-4, Dkt. 

No. 4, pp. 1-4 (Pg. ID 153-156). 

 Meanwhile, on July 8, 2014, Petitioner filed a motion for relief from 

judgment in the state trial court. He argued that the prosecution elicited fabricated 

testimony from the officer in charge of the case, that the trial judge was biased, and 

that appellate counsel was ineffective for failing to raise his two new claims on 

direct appeal. See Mot. for Relief from J., Dkt. No. 13-11, pp. 1-4 (Pg. ID 933-

936). On August 20, 2014, the trial court denied Petitioner’s motion under 
5

Michigan Court Rule 6.508(D)(3) because Petitioner had not shown “good cause” 

for failing to raise his perjury and judicial-bias claims on appeal and actual 

prejudice from the alleged irregularities. The trial court also found no merit in 

Petitioner’s claims, including his claim about appellate counsel. See People v. 

Boswell, No. 11-005601-FC (Wayne Cty. Cir. Ct. Aug. 29, 2014), Dkt. No. 13-12, 

pp. 1-4 (Pg. ID 978-981). 

 Petitioner appealed the trial court’s decision, but the Michigan Court of 

Appeals denied leave to appeal for failure to establish entitlement to relief under 

Rule. 6.508(D). The Court of Appeals stated that Petitioner had alleged grounds 

for relief which could have been raised previously and that Petitioner had failed to 

establish both “good cause” for failing to previously raise the issues and actual 

prejudice from the alleged irregularities. The Court of Appeals rejected 

Petitioner’s claim about appellate counsel for lack of merit. See People v. Boswell, 

No. 325648 (Mich. Ct. App. Apr. 9, 2015), Dkt. No. 13-13, p. 1 (Pg. ID 983). 

 Petitioner raised the same issues in the Michigan Supreme Court. He also 

incorporated by reference his supplemental brief from his direct appeal where he 

argued that there was insufficient evidence of guilt at trial, that the verdict was 

against the great weight of the evidence, and that he was denied the effective 

assistance of counsel. On March 29, 2016, the Michigan Supreme Court denied 
6

leave to appeal because Petitioner had failed to establish entitlement to relief under 

Rule 6.508(D). See People v. Boswell, 499 Mich. 881; 876 N.W.2d 535 (2016). 

 On June 6, 2016, Petitioner filed a motion to amend his habeas petition and 

to re-open this case. See Mot., at 1-6, Dkt. No. 6, pp. 1-6 (Pg. ID 159-164). The 

grounds for relief in the amended petition allege that: (1) there was insufficient 

evidence at trial to sustain Petitioner’s conviction; (2) trial counsel failed to 

subpoena exculpatory res gestae witnesses; (3) the trial court’s verdict was against 

the great weight of the evidence; (4) trial counsel was ineffective for failing to: (a) 

consult adequately with Petitioner, (b) visit the crime scene, and (c) interview 

certain res gestae witnesses; (5) the conviction was based on the perjured 

testimony of police officer Scott Shea; (6) the trial judge was biased; and (7) 

appellate counsel was ineffective for failing to present claims five and six in the 

appeal of right. See Memorandum of Law Supporting First Am. Pet., at 4-13, Dkt. 

No. 7, pp. 4-13 (Pg. ID 224-233). 

 The Court granted Petitioner’s Motion to Amend his Habeas Petition and to 

re-open this case. See Op. and Order, at 1-5, Dkt. No. 10, pp. 1-5 (Pg. ID 241-

245.) In the same order, the Court directed the State to file an Answer to the 

Amended Petition and granted Petitioner permission to file a Reply to the State’s 

Answer. Id., at 4, Dkt. No. 10, p. 4 (Pg. ID 244). The State subsequently filed an 

Answer to the Amended Petition, see Answer in Opp’n to Am. Pet., Dkt. No. 12, 
7

and although the Court extended the deadline for filing a Reply to the State’s 

Answer, see Order, Dkt. No. 15, Petitioner has not filed a Reply. 

 The State maintains that Petitioner’s first four claims are procedurally 

defaulted because Petitioner did not raise those claims in the Michigan Supreme 

Court on direct review. Petitioner, however, has submitted documentation 

showing that he placed his supreme court application in the prison’s outgoing mail 

on September 13, 2013. See Pet. for Writ of Habeas Corpus, Ex. A, Dkt. No. 1 

(Pg. ID 19). For some unknown reason, the application apparently never reached 

the state supreme court, and the Michigan Supreme Court informed Petitioner on 

May 1, 2014, that it did not receive any papers from him in 2013. See id., Ex. C 

(Pg. ID 23). Petitioner does not appear to be at fault for failing to raise his first 

four claims in the Michigan Supreme Court on direct review. The Court, therefore, 

excuses the alleged procedural default related to Petitioner’s first four claims and 

proceeds to address those claims, using the following standard of review. 

II. STANDARD OF REVIEW

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

requires habeas petitioners who challenge “a matter ‘adjudicated on the merits in 

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

involved an unreasonable application of, clearly established Federal law,’ or (2) 

‘was based on an unreasonable determination of the facts in light of the evidence 
8

presented in the State court proceedings.’” Wilson v. Sellers, 138 S. Ct. 1188, 

1192 (2018) (quoting 28 U.S.C. § 2254(d)). “[A] federal habeas court may not 

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

the relevant state-court decision applied clearly established federal law erroneously 

or incorrectly. Rather, that application must also be unreasonable.” Williams v. 

Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus imposes a ‘highly deferential 

standard for evaluating state-court rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 

7 (1997), and ‘demands that state-court decisions be given the benefit of the 

doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. 

Lett, 559 U.S. 766, 773 (2010). 

 “A state court’s determination that a claim lacks merit precludes federal 

habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the 

state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting 

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas 

corpus from a federal court, a state prisoner must show that the state court’s ruling 

on his or her claim “was so lacking in justification that there was an error well 

understood and comprehended in existing law beyond any possibility for 

fairminded disagreement.” Id. at 103. 
9

III. ANALYSIS

A. Claim One: Insufficient Evidence

 Petitioner alleges first that the prosecution deprived him of due process and 

a fair trial by producing insufficient evidence of felony murder. 

1. Clearly Established Federal Law

 The Due Process Clause of the United States Constitution “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). Following Winship, the critical inquiry on review of a 

challenge to the sufficiency of the evidence supporting a criminal conviction is 

whether the record evidence could reasonably support a finding 

of guilt beyond a reasonable doubt. But this inquiry does not 

require a court to “ask itself whether it believes that the 

evidence at the trial established guilt beyond a reasonable 

doubt.” Instead, the relevant question is whether, after viewing 

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt. This familiar standard 

gives full play to the responsibility of the trier of fact fairly to 

resolve conflicts in the testimony, to weigh the evidence, and to 

draw reasonable inferences from basic facts to ultimate facts. 

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote 

omitted) (emphases in original). “Circumstantial evidence may support a 

conviction, McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003), and such 

evidence need not remove every reasonable hypothesis except that of guilt. Walker 
10

v. Russell, 57 F.3d 472, 475 (6th Cir. 1995).” Apanovitch v. Houk, 466 F.3d 460, 

488 (6th Cir. 2006). 

 Moreover, under AEDPA, the Court’s “review of a state-court conviction for 

sufficiency of the evidence is very limited.” Thomas v. Stephenson, 898 F.3d 693, 

698 (6th Cir. 2018). The Supreme Court has “made clear that Jackson claims face 

a high bar in federal habeas proceedings because they are subject to two layers of 

judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). 

 First, it is the responsibility of the trier of fact to decide what conclusions 

should be drawn from the evidence admitted at trial. Id. “And second, on habeas 

review, ‘a federal court may not overturn a state court decision rejecting a 

sufficiency of the evidence challenge simply because the federal court disagrees 

with the state court. The federal court instead may do so only if the state court 

decision was ‘objectively unreasonable.’” Id. 

“[T]his standard is difficult to meet,” no doubt, but “that is because it 

was meant to be.” Harrington v. Richter, 562 U.S. 86, 102, 131 S. Ct. 

770, 178 L.Ed.2d 624 (2011). “[H]abeas corpus is a guard against 

extreme malfunctions in the state criminal justice systems, not a 

substitute for ordinary error correction through appeal.” Id. at 102-03, 

131 S. Ct. 770 (internal quotation marks and citation omitted). 

Thomas, 898 F.3d at 698. 
11

2. Felony Murder

 The Jackson “standard must be applied with explicit reference to the 

substantive elements of the criminal offense as defined by state law,” Jackson, 443 

U.S. at 324 n.16, and, in Michigan, 

[t]he elements of first-degree felony murder are: “ ‘(1) the killing of a 

human being, (2) with the intent to kill, to do great bodily harm, or to 

create a very high risk of death or great bodily harm with knowledge 

that death or great bodily harm was the probable result [i.e., malice], 

(3) while committing, attempting to commit, or assisting in the 

commission of any of the felonies specifically enumerated in [MCL 

750.316(1)(b), here larceny].’ ” People v. Carines, 460 Mich. 750, 

758–759, 597 N.W.2d 130 (1999) (citation omitted). 

People v. Smith, 478 Mich. 292, 318–19; 733 N.W.2d 351, 365 (2007). 

To prove felony murder on an aiding and abetting theory, the 

prosecution must show that the defendant (1) performed acts or gave 

encouragement that assisted the commission of the killing of a human 

being, (2) with the intent to kill, to do great bodily harm, or to create a 

high risk of death or great bodily harm with knowledge that death or 

great bodily harm was the probable result, (3) while committing, 

attempting to commit, or assisting in the commission of the predicate 

felony. People v. Carines, 460 Mich. 750, 755, 597 N.W.2d 130 

(1999). 

People v. Riley, 468 Mich. 135, 140; 659 N.W.2d 611, 614 (2003). Malice may be 

inferred from the use of a deadly weapon, Carines,460 Mich. at 759; 597 N.W.2d 

at 136, and from participation in the underlying offense, People v. Bulls, 262 Mich. 

App. 618, 625; 687 N.W.2d 159, 164 (2004). 
12

3. Application of the Law to the Facts

 The parties stipulated that Yost was killed by a gunshot wound to the head. 

The relevant questions are whether Petitioner shot Yost or aided and abetted “Dirt” 

in shooting Yost, whether the shooting occurred during the commission of an 

enumerated felony, and whether Petitioner possessed the requisite intent. 

 The trial court concluded that sufficient evidence existed to prove that 

Petitioner either shot Yost or aided and abetted “Dirt” in killing Yost, because the 

two men were working in tandem. The Michigan Court of Appeals agreed, stating 

that 

it does not matter if defendant fired the gun because sufficient 

evidence existed showing that he, at a minimum, aided Dirt in the 

killing of Yost. Second, at the time that Yost was shot in the head, 

both defendant and Dirt were standing in close proximity to Yost. In 

fact, by his own admission, defendant placed himself and Dirt at the 

scene of Yost’s murder, explaining that he, Dirt, and Yost were 

walking down Muirland when defendant heard a “loud boom” and he 

saw Yost’s white hat fall to the ground. Defendant contends that it is 

unclear who shot Yost; in fact, defendant argues that Yost was 

probably shot by a gunman who was hiding some distance from the 

men. However, defendant told Detroit Police that he saw Dirt holding 

a gun after he heard the loud boom and witnessed Yost fall to the 

ground. 

Further evidence also linked defendant to Yost’s murder. Shanise 

Tipton and Deante Simmons both witnessed Yost’s murder. Tipton 

witnessed a group of three men who matched the descriptions of Yost, 

Dirt, and defendant. Tipton saw them walking and then they stopped 

and started talking. At some point, Tipton heard a gunshot come from 

the direction of the three men. Tipton testified that she did not see 
13

anything that would lead her to believe either man had a gun. After 

the gun was fired, Tipton witnessed Yost fall to the ground, while men 

matching the descriptions of Dirt and defendant stayed standing near 

the body. Next, Tipton witnessed the man who fit Dirt’s description 

walk toward the alley and stop while the man who matched 

defendant’s description went through Yost’s pocket and removed a 

large item. 

Simmons also witnessed the incident. According to Simmons, after 

the shooting, one of the men served as a “look-out” while the other 

man rifled through Yost’s pockets. All of this evidence places 

defendant at the scene of the murder at the precise time of the murder. 

Because defendant searched through Yost’s pocket after Yost was 

shot, it was reasonable for the judge to infer that one of the men, 

either defendant or Dirt, committed the killing. Even if defendant did 

not commit the killing, there is evidence that defendant performed 

acts or gave encouragement that assisted Dirt in the commission of the 

killing. In fact, if defendant truly had nothing to do with Yost’s 

murder, it is unlikely that an eyewitness would see a man who 

matched defendant’s description pull something out of Yost’s pocket 

while Yost was lying on the ground with a gunshot wound to the head. 

Additionally, the position of the man who matched the description of 

Dirt serving as a look-out while defendant looked through Yost’s 

pockets serves as evidence that the two men were acting together 

when Yost was killed. 

Boswell, 2013 WL 3814345, at *2 -*3. 

 A rational trier of fact could have concluded from this evidence, as the 

Michigan Court of Appeals did, that Petitioner killed Yost or aided and abetted 

“Dirt” in killing Yost. Id. at *3. A rational trier of fact also could have concluded 

from the use of a gun during the incident that Petitioner intended to kill Yost, 

intended to cause great bodily harm, or wantonly and willfully disregarded the 
14

likelihood that the natural tendency of his behavior was to cause death or great 

bodily harm. Even if he did not actually handle the gun, “he nevertheless ‘used’ 

the weapon, with [his accomplice’s] help, to perpetrate the crime and such ‘use’ 

also supports an inference of malice.” Bulls, 262 Mich. App. at 627; 687 N.W.2d 

at 165. 

 Furthermore, larceny is one of the felonies enumerated in the felony murder 

statute, MICH. COMP. LAWS § 750.316(1)(b), and there was sufficient evidence that 

Petitioner committed a larceny or assisted Dirt in committing the larceny during 

the killing. As explained by the Michigan Court of Appeals, 

Burrell testified that Yost should have had roughly $250 in cash in his 

wallet and that Yost was wearing a diamond encrusted watch. 

Defendant told police that both items were taken from Yost by Dirt. . . 

. Additionally, neither the wallet nor the watch was ever recovered. 

Viewing these facts in the light most favorable to the prosecution, 

defendant removed something that belonged to Yost from Yost’s 

person and took it without Yost’s permission because Yost was dead. 

Additionally, sufficient evidence supports a finding that the property 

was moved; in fact, Tipton witnessed the man who matched 

defendant’s description move further down the alley and catch up with 

the man who matched Dirt’s description. . . . Next, sufficient 

evidence supported a finding that defendant took the property with the 

intent to permanently deprive Yost of his belongings. In fact, he 

killed Yost to get the property. . . . Finally, sufficient evidence 

supported a finding that defendant took the property from Yost’s 

immediate area of control or immediate presence. In fact, Tipton 

witnessed him remove it from Yost’s front right pocket. . . . 
15

Id. at *3 -*4. As for whether Petitioner had the intent to commit a larceny during 

the homicide, the Court of Appeals noted that, 

[a]ccording to defendant, himself, he walked to the Marathon gas 

station to “get some blunts.” Defendant said that he was accompanied 

by Dirt. Defendant said that on his way to the gas station, he and Dirt 

“came across” Yost. The video surveillance footage from the 

Marathon gas station shows that the first man to walk into the gas 

station was Yost. Then, eventually, both Dirt and defendant entered 

the Marathon station, and the two, standing only five to five and a half 

feet away from Yost, appeared to have a conversation. This 

conversation appears to have taken place for at least 15 seconds. At 

one point, both Dirt and defendant exited the Marathon station. This 

left Yost in the station by himself. However, defendant and Dirt 

returned and, eventually, all three men, including Yost, left the 

Marathon station. Viewing the evidence in the light most favorable to 

the prosecution, this evidence shows that (1) defendant and Dirt had 

an opportunity to see Yost’s watch and possibly his wallet and (2) 

defendant and Dirt had time to formulate a plan to kill Yost to get his 

watch and whatever else he may have carried on his person. In fact, 

after Yost was shot, instead of trying to get Yost medical help, calling 

the police, or getting assistance from someone in the neighborhood, 

both Dirt and defendant stayed near the body; Dirt served as a lookout, and defendant went through Yost’s pocket. The relationship in 

time between the murder and the larceny, when viewed in the light 

most favorable to the prosecution, provides sufficient evidence that 

defendant had the intent to commit larceny before or at the time he 

killed or assisted in the killing of Yost. 

Id. at *4. 

A rational trier of fact could have concluded from all the evidence 

summarized above, that Petitioner aided and abetted “Dirt” in killing Yost during 

the commission of a larceny and that Petitioner possessed malice at the time. 
16

Thus, the prosecution proved the essential elements of first-degree felony murder 

beyond a reasonable doubt. In addition, the state appellate court’s conclusion – 

that the essential elements for felony murder were proved – was objectively 

reasonable. Petitioner, therefore, has no right to relief on his challenge to the 

sufficiency of the evidence. 

B. Claims Two and Four: Ineffective Assistance of Trial Counsel

 The second and fourth claims allege that Petitioner was deprived of the 

effective assistance of counsel guaranteed him under the Sixth Amendment to the 

United States Constitution. Specifically, Petitioner alleges in claim two that trial 

counsel failed to subpoena Dorian Clarice Wallace and Debra Hardwick, who 

would have supported his defense of actual innocence. In claim four, Petitioner 

alleges that trial counsel failed to consult adequately with him, failed to visit the 

crime scene to determine whether the witnesses gave an accurate description of the 

incident, and failed to interview res gestae witnesses to determine whether 

someone named Charles Taylor murdered Yost. 

 To prevail on his ineffectiveness claim, Petitioner must show “that counsel’s 

performance was deficient” and “that the deficient performance prejudiced the 

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The deficientperformance prong “requires showing that counsel made errors so serious that 

counsel was not functioning as the counsel guaranteed the defendant by the Sixth 
17

Amendment.” Id. (internal quotation marks omitted). “[T]he defendant must show 

that counsel’s representation fell below an objective standard of reasonableness. 

Id. at 688. 

 The “prejudice” prong “requires showing that counsel’s errors were so 

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 

Id. at 687. A defendant must demonstrate “a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Id. at 694. 

 “The standards created by Strickland and § 2254(d) are both ‘highly 

deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter, 

562 U.S. at 105 (internal and end citations omitted). “When § 2254(d) applies, the 

question is not whether counsel’s actions were reasonable. The question is 

whether there is any reasonable argument that counsel satisfied Strickland’s 

deferential standard.” Id. 

 1. Failure to Interview and Subpoena Witnesses

Petitioner alleges that trial counsel was ineffective because he failed to 

interview and subpoena Dorian Clarice Wallace and Debra Hardwick to determine 

whether Charles Taylor, and not Petitioner, murdered Yost. 
18

 Defense attorneys have “a duty to make reasonable investigations or to make 

a reasonable decision that makes particular investigations unnecessary.” 

Strickland, 466 U.S. at 691. “This duty includes the obligation to investigate all 

witnesses who may have information concerning his or her client’s guilt or 

innocence.” Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). Under Strickland, 

however, the Court “must presume that decisions of what evidence to present and 

whether to call or question witnesses are matters of trial strategy.” Cathron v. 

Jones, 77 F. App’x 835, 841 (6th Cir. 2003) (citing Hutchison v. Bell, 303 F.3d 

720, 749 (6th Cir. 2002)). “[C]ounsel may exercise his professional judgment with 

respect to the viability of certain defenses and evidentiary matters without running 

afoul of the Sixth Amendment.” Lewis v. Alexander, 11 F.3d 1349, 1353–54 (6th 

Cir. 1993). Further, in the absence of any evidence showing that uncalled 

witnesses would have offered specific favorable testimony, a petitioner cannot 

establish Strickland prejudice from counsel’s failure to produce the witnesses. 

Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005). 

 Wallace informed a police officer on August 15, 2009, that Charles Taylor 

admitted to killing Yost in retaliation for Yost killing Taylor’s brother. See

Amended Pet. for Writ of Habeas Corpus, Dkt. No. 7, pp. 52-53 (Pg. ID 218-219). 

However, on January 7, 2011, which was nine months before Petitioner’s trial, 

Wallace gave a second witness statement in which she said that, after she gave her 
19

statement in August 2009, Taylor told her that he had nothing to do with the 

murder, and she believed him. See id., p. 50 (Pg.ID 216). In light of Wallace’s 

2011 statement, trial counsel was not ineffective for failing to interview and 

subpoena Wallace. As the state appellate court pointed out, 

even if defense counsel had investigated the lead or called this 

witness, either the witness would have testified consistent with her 

more recent statement, which would not help defendant’s case, or she 

would have testified consistent with the first statement and been 

impeached by the subsequent statement. Thus, defense counsel’s 

alleged failure to investigate or call the witness appears to be a clear 

exercise of trial strategy. 

Boswell, 2013 WL 3814345, at *6. 

 The Court of Appeals also concluded that Petitioner could not prove any 

prejudice from counsel’s failure to investigate and call Wallace, because 

[o]verwhelming evidence, including defendant’s own statements to 

[Office Scott] Shea and phone calls defendant made shortly after the 

murder of Yost, place defendant directly beside Yost when he was 

murdered. Furthermore, defendant told Shea that he saw Dirt holding 

a gun after Yost was shot. It is entirely possible that defense counsel 

strategically did not investigate this issue or raise it at trial because it 

would have further called into question defendant’s credibility. 

Id. 

 As for Hardwick, she merely informed a police officer on the day after the 

shooting that she heard a gunshot and then saw a man lying in the street. She also 
20

saw two other men, but it was dark outside, and she could not identify the men. 

See Pet. for Writ of Habeas Corpus, Ex. B, p. 25 (Pg. ID 125). 

 Hardwick’s statement to the police was similar to the testimony of 

prosecution witnesses Tipton and Simmons, who also saw two men near the 

victim, but could not identify the men by their faces. See, e.g., 10/13/11 Trial Tr., 

at 10-11, 17-19, Dkt. No. 13-5, pp. 10-11, 17-19 (Pg. ID 563-64, 570-572) 

(Tipton’s testimony); id. at 45, Dkt. No. 13-5, p. 45 (Pg. ID 598) (Simmons’ 

testimony). Therefore, Hardwick would not have benefitted the defense, and 

Petitioner was not prejudiced by defense counsel’s failure to interview and produce 

Hardwick as a defense witness. 

2. Failure to Consult

 Petitioner alleges next that trial counsel failed to consult adequately with 

him. Petitioner alleged in his state appellate brief that counsel visited him only 

two times before trial and that the purpose of one of the visits was to ask for 

money. The Michigan Court of Appeals rejected this claim because there was no 

evidence in the record to support Petitioner’s contention and, therefore, counsel 

presumably acted effectively. 

 The Supreme Court has said that defense attorneys have “a duty to discuss 

potential strategies with the defendant,” and “to consult with the client regarding 

‘important decisions,’ including questions of overarching defense strategy.” 
21

Florida v. Nixon, 543 U.S. 175, 178, 187 (2004); see also Jemison v. Foltz, 672 F. 

Supp. 1002, 1007 (E.D. Mich. 1987) (“Defense counsel had a duty to consult with 

defendant on important decisions, and to bring to bear on the case such skill and 

knowledge as to make the trial a reliable adversary proceeding.”). But “[n]ot every 

restriction on counsel’s time or opportunity to investigate or to consult with his 

client or otherwise to prepare for trial violates a defendant’s Sixth Amendment 

right to counsel.” Morris v. Slappy, 461 U.S. 1, 11 (1983). “[A] court must 

indulge a ‘strong presumption’ that counsel’s conduct falls within the wide range 

of reasonable professional assistance because it is all too easy to conclude that a 

particular act or omission of counsel was unreasonable in the harsh light of 

hindsight.” Bell v. Cone, 535 U.S. 685, 702 (2002) (citing Strickland, 466 U.S. at 

689). 

 The facts in this case were not complicated, and the number of times that 

defense counsel visited Petitioner is not necessarily indicative of deficient 

performance. As stated in Easter v. Estelle, 609 F.2d 756 (5th Cir. 1980), 

the brevity of time spent in consultation, without more, does not 

establish that counsel was ineffective. Therefore, it is not enough to 

merely show that counsel only met with [the petitioner] twice before 

trial as long as counsel devoted sufficient time to insure an adequate 

defense and to become thoroughly familiar with the facts of the case 

and the law applicable to the case. 

Id. at 759 (internal citations omitted). 
22

 The record in this case indicates that defense counsel was prepared for trial, 

and Petitioner has not alleged what impact his limited visits with defense counsel 

had on his trial. Thus, Petitioner has failed to show that his attorney’s limited 

consultations with him amounted to the ineffective assistance of counsel. 

3. Failure to Visit the Crime Scene

 Petitioner alleges that his attorney should have visited the crime scene to 

determine whether the witnesses gave an accurate description of the incident. 

According to Petitioner, Tipton and Simmons were 150 feet away from where the 

crime occurred, not 50 feet away, as they claimed at trial. Petitioner alleges that 

his attorney would have discovered this fact if he had visited the crime scene and 

that the information could have been used to attack the witnesses’ credibility and 

ability to see accurately. 

 The Michigan Court of Appeals rejected Petitioner’s claim because he relied 

on a map or sketch that was not drawn to scale and that provided no measurements 

to determine how far apart the objects were. The Court of Appeals also stated that 

there were no facts in the record to support the contention that defense counsel 

never visited the murder scene or that Tipton and Simmons stood more than 50 feet 

away from the scene of the crime. 

 As noted above, defense attorneys have “a duty to make reasonable 

investigations or to make a reasonable decision that makes particular investigations 
23

unnecessary.” Strickland, 466 U.S. at 691. But “[i]n any ineffectiveness case, 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.” Id. “[R]easonably diligent counsel may draw a line when they have 

good reason to think further investigation would be a waste.” Rompilla v. Beard, 

545 U.S. 374, 383 (2005). 

 Tipton testified that the three men she observed were standing under a 

streetlight and that she got a good look at them. 10/13/11 Trial Tr., at 9, 18-19, 

Dkt. No. 13-5, pp. 9, 18-19 (Pg. ID 562, 571-72). She also testified that she was 

looking at the men the entire time. Id. at 21, 29-30, Dkt. No. 13-5, pp. 21, 29-30 

(Pg. ID 574, 582-583). 

 Simmons testified that he was less than fifty feet away from the men when 

he made his observations and that the men were standing by a streetlight. Id., at 

46, 39, Dkt. No. 13-5, pp. 46, 39 (Pg. ID 599, 592). When defense counsel asked 

Simmons about the basis for his conclusion that one man was acting as a lookout, 

Simmons said, “I was right there.” Id., at 43, Dkt. No. 13-5, p. 43 (Pg. ID 596). 

Finally, police officer David Haines testified that the area near the victim’s body 

was illuminated by a working public utility light. 10/12/11 Trial Tr., at 67, Dkt. 

No. 13-4, p. 67 (Pg.ID 487). 
24

 Given the eyewitnesses’ testimony about the lighting at the crime scene and 

their ability to see, the result of the trial in all likelihood would not have been 

different if defense counsel had visited the crime scene and tried to impeach the 

eyewitnesses with their ability to observe the crime. Thus, defense counsel’s 

alleged failure to visit the crime scene did not prejudice Petitioner. 

 To conclude, Petitioner has failed to show that his trial attorney’s 

performance was deficient and that the deficient performance prejudiced his 

defense. Additionally, the state appellate court’s rejection of Petitioner’s 

ineffectiveness claims was not contrary to, or an unreasonable application of, 

Strickland. Petitioner has no right to relief on his second and fourth claims. 

C. Claim Three: The Verdict Was Against the Weight of the Evidence

 The third habeas claim alleges that the trial court’s ruling was against the 

great weight of the evidence. Petitioner points out that there was no forensic 

evidence linking him to the crime. He also contends that: he made no confession 

or inculpatory statements; Wallace admitted to an officer that someone else 

confessed to committing the crime; Hardwick was an eyewitness to the crime, but 

she did not identify him as the murderer; Officer Shea committed perjury; and the 

trial judge was impermissibly pro-prosecution. 

 The Michigan Court of Appeals stated on direct review that 
25

[t]he trial court’s ruling was not against the great weight of the 

evidence because the evidence did not preponderate heavily against 

the verdict so that it would be a miscarriage of justice to allow the 

verdict to stand. [People v.] Lemmon, 456 Mich. [625, 627; 576 

N.W.2d 129 (1998)]. In fact, . . . the great weight of the evidence—

from defendant’s own statements, video surveillance footage at the 

Marathon gas station, eyewitness testimony, and the timing of the 

larceny in relation to the murder—supported a finding that defendant 

was guilty of first-degree felony murder. 

Boswell, 2013 WL 3814345, at *5. 

 This Court finds no merit in Petitioner’s claim because a weight-of-theevidence argument is a state-law argument, Nash v. Eberlin, 258 F. App’x 761, 

764 n.4 (6th Cir. 2007), and “federal habeas corpus relief does not lie for errors of 

state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). “In conducting habeas 

review, a federal court is limited to deciding whether a conviction violated the 

Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 

62, 68 (1991). Because Petitioner has not alleged a violation of federal law, his 

claim is not cognizable on habeas review. 

D. Claims Five, Six, and Seven: Perjury, Judicial Bias, and 

 Ineffective Assistance of Appellate Counsel

 The fifth habeas claim alleges that the prosecution relied on, and failed to 

correct, Officer Shea’s perjured testimony, and the sixth claim alleges that the trial 

court was biased against Petitioner. The State argues that these claims are 
26

procedurally defaulted because Petitioner did not raise the claims on direct appeal 

and because the state appellate court relied on that fact to deny relief. 

 In the habeas context, a procedural default is “a critical failure to comply 

with state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). Under the 

doctrine of procedural default, “a federal court will not review the merits of [a state 

prisoner’s] claims, including constitutional claims, that a state court declined to 

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

Ryan, 566 U.S. 1, 9 (2012). Federal courts deem a habeas petitioner’s claim 

procedurally defaulted 

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

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

rule; (3) the state procedural rule is an adequate and independent state 

ground for denying review of a federal constitutional claim; and (4) 

the petitioner has not shown cause and prejudice excusing the 

default.” [Jalowiec v. Bradshaw, 657 F.3d 293, 302 (6th Cir. 2011)]. 

To determine whether a state procedural rule was applied to bar a 

habeas claim, [courts] look “to the last reasoned state court decision 

disposing of the claim.” Guilmette v. Howes, 624 F.3d 286, 291 (6th 

Cir. 2010) (en banc). 

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

1. The State Rule

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

which reads in relevant part as follows: 
27

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

establishing entitlement to the relief requested. The court may not 

grant relief to the defendant if the motion 

. . . . 

(3) alleges grounds for relief, other than jurisdictional 

defects, which could have been raised on appeal from the 

conviction and sentence or in a prior motion under this 

subchapter, unless the defendant demonstrates 

(a) good cause for failure to raise such 

grounds on appeal or in the prior motion, 

and 

(b) actual prejudice from the alleged 

irregularities that support the claim for 

relief. 

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

 Petitioner violated the essence of Rule 6.508(D)(3) by not raising his perjury 

and judicial-bias claims in the appeal of right. Instead, he raised the claims for the 

first time in his motion for relief from judgment and subsequent appeals. 

Therefore, the first procedural-default factor is satisfied. 

2. Enforcement of the State Rule

 The state trial court enforced Rule 6.508(D)(3) in its opinion denying 

Petitioner’s motion for relief from judgment. The court stated that Petitioner had 

not shown “good cause” under Rule 6.508(D)(3), nor proved actual prejudice. The 

Michigan Court of Appeals also determined that Petitioner’s claims about Officer 
28

Shea and the trial court could have been raised previously and that Petitioner had 

failed to establish both good cause for failing to raise the issues previously and 

actual prejudice from the irregularities alleged. 

 Although the trial court also addressed Petitioner’s fifth and sixth claims on 

the merits, the alternative holdings “do[] not require [the Court] to disregard the 

state court’s finding of procedural bar.” Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 

1998). As explained in Harris v. Reed, 489 U.S. 255 (1989), 

a state court need not fear reaching the merits of a federal claim in an 

alternative holding. By its very definition, the adequate and 

independent state ground doctrine requires the federal court to honor a 

state holding that is a sufficient basis for the state court’s judgment, 

even when the state court also relies on federal law. See Fox Film 

Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L. Ed. 158 

(1935). Thus, by applying this doctrine to habeas cases, [Wainwright 

v. Sykes, 433 U.S. 72 (1977)] curtails reconsideration of the federal 

issue on federal habeas as long as the state court explicitly invokes a 

state procedural bar rule as a separate basis for decision. In this way, 

a state court may reach a federal question without sacrificing its 

interests in finality, federalism, and comity. 

Id. at 264 n.10 (emphasis in original). The Court concludes that the second 

procedural default factor is satisfied. 

3. The Adequacy and Independent Ground for the State Rule

 The third factor is satisfied if the state procedural rule in question was an 

adequate and independent state ground for denying review of a federal 

constitutional claim. The Sixth Circuit has said that the procedural bar set forth in 
29

Rule 6.508(D) is an adequate and independent ground on which state courts may 

rely to foreclose review of federal claims. Howard v. Bouchard, 405 F.3d 459, 477 

(6th Cir. 2005). Therefore, the third procedural-default factor is satisfied. 

4. “Cause” for the Procedural Default 

 The fourth factor requires a habeas petitioner to show “cause” for his state 

procedural error and resulting prejudice. Petitioner alleges in his seventh claim 

that his appellate attorney inexcusably failed to present claims five and six in the 

appeal of right. The state trial court, however, found no merit in Petitioner’s claim 

about appellate counsel because Petitioner could not show any prejudice from 

appellate counsel’s decisions. 

 “Ineffective assistance of counsel . . . is cause for a procedural default.” 

Murray v. Carrier, 477 U.S. 478, 488 (1986). But an indigent defendant has no 

constitutional right to compel appointed counsel to raise nonfrivolous claims on 

appeal if counsel, as a matter of professional judgment, decides not to present those 

claims. Jones v. Barnes, 463 U.S. 745, 751 (1983). In fact, as the state trial court 

recognized on review of Petitioner’s claim, “the process of winnowing out weaker 

arguments on appeal is the hallmark of effective appellate advocacy.” Monzo v. 

Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (quotation marks and end citations 

omitted). 
30

 To prevail on his claim about appellate counsel, Petitioner must demonstrate 

(1) that his appellate attorney acted unreasonably in failing to discover and raise 

nonfrivolous issues on appeal and (2) there is a reasonable probability Petitioner 

would have prevailed on appeal if his attorney had raised the issues. Smith v. 

Robbins, 528 U.S. 259, 285 (2000) (citing Strickland, 466 U.S. at 687-91, 694). 

When assessing the prejudice prong of this test, the Court looks to whether 

appellate counsel’s actions prejudiced Petitioner, which means that the Court must 

assess the strength of the claims that appellate counsel failed to raise. Carter v. 

Parris, __ F.3d __, No. 17-5498, 2018 WL 6441617, at *4 (6th Cir. Dec. 10, 2018) 

(citing Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008)). “If there is no 

‘reasonable probability that inclusion of the issue would have changed the result of 

the appeal,’ then habeas relief will not be granted.” Id. (quoting McFarland v. 

Yukins, 356 F.3d 688, 699 (6th Cir. 2004)). 

 i. Perjury

 Petitioner alleges that the prosecution convicted him on the basis of perjured 

testimony provided by Officer Shea, who testified about his interview with 

Petitioner on October 18, 2009, approximately five months after the murder of 

Yost. According to Shea, Petitioner initially denied being present during the 

shooting, but later admitted during the interview that he went to a gas station with 

Yost and “Dirt” on the night in question. Petitioner also stated that, as the group 
31

walked down Muirland, Yost told “Dirt” not to walk behind him, and “Dirt” 

responded by saying something to Yost. They continued walking down Muirland. 

Petitioner then heard a gunshot and took off running. He looked back and saw 

“Dirt” robbing Yost. 10/12/11 Trial Tr., at 115-17, 122, 128, Dkt. No. 13-4, pp. 

115-17, 122, 124, 128 (Pg. ID 535-37, 542, 544, 548). 

 Petitioner has not alleged what was false about Shea’s testimony. However, 

in his state post-conviction motion, Petitioner alleged that, contrary to Shea’s 

testimony, he repeatedly told Shea that Yost was shot by someone who was 

conversing with Yost in the alley. According to Petitioner, Shea responded by 

stating that, if Petitioner wanted to go home, he had to change his statement. 

 Shea’s contrary testimony about the voluntariness and content of Petitioner’s 

statement to him does not establish perjury. See United States v. Lochmondy, 890 

F.2d 817, 822 (6th Cir. 1989) (“[M]ere inconsistencies in testimony by government 

witnesses do not establish knowing use of false testimony.”). In fact, nothing that 

Shea said suggested that he was lying. His testimony that Petitioner was involved 

in the murder was consistent with the rest of the evidence. 

 Furthermore, Petitioner has not established that the prosecution knew Shea’s 

testimony was false. Cf. Amos v. Renico, 683 F.3d 720, 728 (6th Cir. 2012) 

(explaining that, to prevail on a claim that the prosecution presented false 

testimony, a petitioner must show that the testimony was actually false and that the 
32

prosecutor knew the testimony was false). Therefore, Petitioner has failed to prove 

his perjury claim, and appellate counsel was not ineffective for failing to raise the 

claim on appeal. 

 ii. The Trial Court

 Petitioner’s sixth claim alleges the trial court was pro-prosecution and biased 

against him. The state trial court opined on review of this claim that its conduct 

was not improper and that it did not pierce the veil of judicial impartiality. The 

trial court concluded that Petitioner’s claim lacked merit. 

 To prevail on a claim of judicial bias, a defendant must show “there was 

bias, or such a likelihood of bias or an appearance of bias that the judge was unable 

to hold the balance between vindicating the interests of the court and the interests 

of the accused.” Ungar v. Sarafite, 376 U.S. 575, 588 (1964). In his postconviction motion, Petitioner alleged that the trial court’s conduct resembled that 

of a prosecutor, as opposed to, a detached and impartial judge. Petitioner also 

alleged that the trial court made improper inferences from the evidence when the 

court stated that Petitioner was working in tandem with “Dirt,” that Petitioner 

looked a little nervous in the video of the incident at the gas station, and that the 

victim appeared to think something was not right. 

 The trial court, however, was the trier of fact and entitled to draw reasonable 

inferences from the evidence. Jackson, 443 U.S. at 319. Furthermore, neither the 
33

trial court’s findings of fact, nor its conclusions of law, establish that the court was 

biased against Petitioner. Judicial rulings almost never constitute a valid basis for 

a claim of judicial bias or partiality. Liteky v. United States, 510 U.S. 540, 555 

(1994). Additionally, “opinions formed by the judge on the basis of facts 

introduced or events occurring in the course of the current proceedings, or of prior 

proceedings, do not constitute a basis for a bias or partiality motion unless they 

display a deep-seated favoritism or antagonism that would make fair judgment 

impossible.” Id. 

 The trial court’s findings of fact and conclusions of law in Petitioner’s case 

do not reflect a deep-seated favoritism toward the prosecution, nor antagonism 

toward Petitioner. Therefore, appellate counsel was not ineffective for failing to 

raise Petitioner’s judicial-bias claim on direct appeal. 

 The Court concludes that Petitioner’s underlying claims about Officer 

Shea’s testimony and the trial court’s alleged bias lack merit, and there is no 

reasonable probability that inclusion of the issues would have changed the result of 

the appeal. Accordingly, appellate counsel satisfied Strickland’s deferential 

standard, and Petitioner’s independent claim about appellate counsel lacks merit. 

“[B]y definition, appellate counsel cannot be ineffective for a failure to raise an 

issue that lacks merit.” Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). 

Furthermore, because appellate counsel was not constitutionally ineffective, 
34

Petitioner has failed to show “cause” for his procedural default of not raising his 

fifth and sixth claims in the appeal of right. 

5. Prejudice; Miscarriage of Justice

 The Court need not determine whether the alleged constitutional errors 

prejudiced Petitioner, because he has failed to show cause for his failure to comply 

with state law. Smith v. Murray, 477 U.S. 527, 533 (1986); Simpson v. Jones, 238 

F.3d 399, 409 (6th Cir. 2000). In the absence of “cause and prejudice,” a habeas 

petitioner may pursue a procedurally defaulted claim only if he can demonstrate 

that failure to consider his claim will result in a fundamental miscarriage of justice. 

Coleman v. Thompson, 501 U.S. 722, 750 (1991). “A fundamental miscarriage of 

justice results from the conviction of one who is ‘actually innocent.’ ” Lundgren v. 

Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (citing Carrier, 477 U.S. at 496.) “To 

be credible, [a claim of actual innocence] requires [the] petitioner to support his 

allegations of constitutional error with new reliable evidence – whether it be 

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 

physical evidence – that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 

324 (1995). 

 Wallace and Hardwick’s statements to the police were not introduced at 

Petitioner’s trial, but their statements fail to establish that Petitioner is actually 

innocent. Therefore, a miscarriage of justice will not occur as a result of any 
35

failure to address the substantive merits of Petitioner’s claims about Officer Shea 

and the trial court. Those claims are procedurally defaulted, and the related claim 

about appellate counsel does not entitle Petitioner to relief because the underlying 

claims about Office Shea and the trial court are meritless. 

IV. CONCLUSION AND ORDER

 Petitioner’s fifth and sixth claims are procedurally defaulted, his seventh 

claim lacks substantive merit, and his third claim is not cognizable on habeas 

review. Additionally, the state appellate court’s rejection of Petitioner’s first, 

second, and fourth claims was not contrary to Supreme Court precedent, an 

unreasonable application of Supreme Court precedent, or an unreasonable 

application of the facts. The state-court decisions also were not so lacking in 

justification that there was an error beyond any possibility for fairminded 

disagreement. 

 Accordingly, IT IS ORDERED that the Amended Petition for a Writ of 

Habeas Corpus (Dkt. No. 7) is DENIED. 

IT IS FURTHER ORDERED that a Certificate of Appealability is 

DENIED because Petitioner has not made “a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). In addition, reasonable jurists could 

not disagree with the Court’s resolution of Petitioner’s constitutional claims, nor 

conclude that the issues are adequate to deserve encouragement to proceed further. 
36

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). As for Petitioner’s procedurally 

defaulted claims, reasonable jurists would not find it debatable whether the petition 

states a valid claim of the denial of a constitutional right or whether the Court’s 

procedural ruling on the defaulted claims is correct. Slack v. McDaniel, 529 U.S. 

473, 484 (2000). Nevertheless, an appeal could be taken in good faith. 

 Accordingly, IT IS FURTHER ORDERED that Petitioner may proceed in 

forma pauperis on appeal. 28 U.S.C. § 1915(a)(3). 

 SO ORDERED. 

Dated: April 5, 2019

        s/Gershwin A. Drain      

        HON. GERSHWIN A. DRAIN

        United States District Court Judge

CERTIFICATE OF SERVICE 

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

of record on this date, April 5, 2019, by electronic and/or ordinary mail. 

s/Teresa McGovern 

Case Manager