UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICHAEL J. WALTON, 

 Petitioner, Civil Case No. 15-10609 

 Honorable Linda V. Parker 

v. 

THOMAS MACKIE, 

 Respondent, 

_____________________________________/ 

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF 

HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF 

APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

Petitioner Michael J. Walton (“Petitioner”) has filed an application for the 

writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his 

Michigan state court convictions for assault with intent to commit murder, 

unlawful imprisonment, domestic violence, two counts of fourth-degree child 

abuse, and felony-firearm. For the reasons that follow, the Court is denying 

Petitioner’s request for habeas relief. 

I. Background 

 Petitioner was convicted of the above offenses following a bench trial in the 

Wayne County Circuit Court. The charges arose from the shooting of Petitioner’s 

wife, Twonder Walton, above her right eye. Petitioner’s convictions and sentence 

were affirmed on appeal. People v. Walton, No. 306950, 2013 WL 2420980 
2 

(Mich. Ct. App. June 5, 2013), leave denied, 839 N.W.2d 483 (Mich. 2013). In its 

decision, the Michigan Court of Appeals set forth the following summary of the 

facts leading to Petitioner’s convictions: 

 Defendant and Twonder were arguing when defendant picked 

up a revolver. Defendant told Twonder, “We [sic] going to play a 

little game which is called Russian roulette.” Defendant placed 

bullets inside his gun. He pointed his revolver at Twonder’s head and 

pulled the trigger multiple times, but no bullet fired. Defendant 

stopped and looked at the position of the bullets in his gun. He put the 

gun to Twonder’s head and then to her mouth. Defendant told her not 

to make matters worse as she tried to push the gun away from her 

head. Defendant “look[ed] at the gun” and told her, “That could have 

been you. The bullet was almost there.” Defendant pulled the trigger 

a “couple” times and a bullet discharged and hit Twonder above her 

right eye. Twonder yelled, “Oh my God, you shot me.” The nine 

year-old daughter of defendant and Twonder heard Twonder yelling 

“Oh my God.” 

Walton, 2013 WL 2420980, at *2. These facts are presumed correct on habeas 

review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 

413 (6th Cir. 2009). 

 Petitioner filed his application for federal habeas corpus relief on February 

17, 2015. (ECF No. 1.) He subsequently moved to stay the proceedings to exhaust 

claims in the state courts, which the Court granted. (ECF Nos. 9, 10.) 

 Petitioner thereafter filed a post-conviction motion for relief from judgment 

in the state trial court. (ECF No. 24-9.) The state trial court denied the motion on 

February 11, 2016. (ECF No. 24-10.) The Michigan appellate courts denied 
3 

Petitioner leave to appeal. People v. Walton, No. 334199 (Mich. Ct. App. Oct. 31, 

2016), leave denied, 896 N.W.2d 448 (2017). 

 Petitioner returned to this Court and filed an amended habeas petition on 

August 9, 2017. (ECF No. 19.) Respondent filed an answer to the petition and 

amended petition on March 13, 2018. (ECF No. 23.) Petitioner asserts the 

following claims in support of his request for relief under § 2254: 

I. The Defendant was denied his Sixth Amendment right to effective 

assistance of counsel where counsel failed to perform an effective 

cross-examination to impeach inconsistencies, and contradictions to 

show the witnesses’ story was perjured and fabricated, and that the 

witness coached false witnesses; and failed to call Glover, the officer 

in charge of this case, to testify. 

II. The Defendant was denied his Sixth Amendment right to effective 

assistance of trial counsel where counsel failed to investigate two 

witnesses that would have provided testimony that would prove the 

complainant was lying, and shedded [sic] light to the complainant’s 

motive to lie. 

III. The Defendant was denied his Sixth Amendment right to 

effective assistance of counsel where counsel failed to investigate the 

physical evidence of hotel receipt records, and surveillance video 

from three different places, that would have absolutely proved redhandedly that the complainant lied, in a case that had only testimonial 

evidence—based on credibility. 

IV. The Defendant was deprived of his Fourteenth Amendment 

federal constitutional right to due process and a fair trial where the 

prosecutor knew for a fact that certain testimony of his main witness 

and his 9 and 7 year old witnesses was “factually” false. And had to, 

or should have known that all of their testimony—as shown in Issue 

I’s impeachment demonstration—was fabricatedly [sic] perjured, and 

did not attempt to disclose or correct any of the false testimony, but 

instead, he “knowingly” used it. 
4 

V. The Defendant was denied his Sixth Amendment right to effective 

assistance of appellate counsel, and his Fourteenth Amendment right 

to a full and fair appeal of right, where appellate counsel omitted these 

significant and obvious issues on direct appeal, that were clearly 

stronger than the one and only issue counsel did raise. 

VI. Playing Russian roulette with another person shows a wanton and 

wreckless [sic] disregard for another person’s life, but is not an actual 

intent to kill. Assault with intent to commit murder requires actual 

intent to kill. Since the evidence showed that Mrs. Walton was shot by 

Mr. Walton during a game of Russian roulette, there was not 

sufficient evidence to convict him of assault with intent to commit 

murder. 

II. Standard of Review 

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

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

habeas cases: 

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

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

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

court proceedings unless the adjudication of the claim– 

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

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or 

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

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

State court proceeding. 

 

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

state court arrives at a conclusion opposite to that reached by the Supreme Court 
5 

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

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

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

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

facts of a prisoner’s case.” Id. at 409. 

 A federal habeas court may not “issue the writ simply because that court 

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

clearly established federal law erroneously or incorrectly.” Id. at 410-11. “[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)). To obtain habeas relief in federal court, a 

state prisoner is required to show that the state court’s rejection of 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. A habeas petitioner should be denied relief as long as it 

is within the “realm of possibility” that fairminded jurists could find the state court 

decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016). 

When reviewing a claim under AEDPA’s deferential standard of review, a 

federal habeas court must review “the last state court to issue a reasoned opinion 
6 

on the issue.” Hoffner v. Bradshaw, 622 F. 3d 487, 505 (6th Cir. 2010) (quoting 

Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005)). Petitioner raised the first five 

grounds asserted in support of his request for habeas relief for the first time in his 

post-conviction motion for relief from judgment. The Michigan Court of Appeals 

and the Michigan Supreme Court denied Petitioner’s post-conviction applications 

for leave to appeal in unexplained one-sentence orders. This Court, therefore, must 

“look through” these decisions to the trial judge’s opinion and determine whether 

that decision was “contrary to,” or “an unreasonable application of” clearly 

established federal law as determined by the United States Supreme Court. See 

Hamilton v. Jackson, 416 F. App’x. 501, 505 (6th Cir. 2011). 

III. Discussion 

A. Petitioner’s Ineffective Assistance of Trial Counsel Claims 

Petitioner claims ineffective assistance of trial counsel in his first through 

third grounds in support of his request for habeas relief. 

To establish an ineffective-assistance claim, a habeas petitioner must 

demonstrate that counsel’s representation “fell below an objective standard of 

reasonableness” and that he suffered prejudice as a result. See Strickland v. 

Washington, 466 U.S. 668, 687-88 (1984). There is “a strong presumption that 

counsel’s conduct [fell] within the wide range of reasonable professional 

assistance.” Id. at 689. Habeas review also mandates the application of a second 
7 

layer of deference: a habeas court analyzes only whether the state court was 

reasonable in its determination that counsel’s performance was adequate. See Burt 

v. Titlow, 571 U.S. 12, 15, 24 (2013); Abby v. Howe, 742 F.3d 221, 226 (6th Cir. 

2014). 

 Petitioner first asserts that his trial counsel failed to perform an effective 

cross-examination to impeach the prosecution’s witnesses. The state trial court 

judge found that the exhibits corroborated the witnesses’ testimony and that the 

inconsistencies identified by Petitioner did not exist. (ECF No. 24-10 at Pg ID 

818-19.) The trial judge also rejected Petitioner’s claim because he never 

articulated, except in a conclusory fashion, what information would have proven 

that the witnesses were lying. (Id. at Pg ID 820.) 

 The court rejected for the same reason Petitioner’s claim that his trial 

counsel was ineffective by not calling the officer in charge, Office Glover, to 

testify and by not investigating two witnesses (unidentified hotel employees) and 

certain physical evidence (hotel receipts and surveillance video).1

 (Id. at 819-20.) 

As the trial judge wrote, Petitioner failed to identify what information these 

witnesses would provide or what the physical evidence would show in aid of his 

defense. (Id.) 

 

1 The evidence at trial established that Petitioner, Ms. Walton, and their children 

left their home after Ms. Walton was shot and spent several nights in hotels. 
8 

 The trial court understood Petitioner’s claims as boiling down to an 

argument “that his testimony was truthful and all of the other witnesses lied, were 

coached to lie or were prevented from testifying to cover up the use of perjured 

testimony.” (Id. at Pg ID 818.) The court noted that the issue of credibility was 

central in Petitioner’s case. (Id.) Yet, regarding credibility, the trial judge wrote: 

“I find the story that was woven by Mr. Walton (defendant) is probably one of the 

most improbable, incredible stories that I have ever heard told.” (Id.) The court 

found nothing in the record to “refute[] that finding.” (Id.) 

 The trial judge’s assessment was neither contrary to nor an unreasonable 

application of clearly established federal law. It also was not based on an 

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

 In the state court proceedings and in these federal habeas proceedings, 

Petitioner has never offered any evidence to show what Officer Glover or the two 

witnesses would have testified to, if defense counsel had called them as witnesses. 

Conclusory allegations of ineffective assistance of counsel, without any 

evidentiary support, do not provide a basis for habeas relief. Workman v. Bell, 

1778 F.3d 759, 771 (6th Cir. 1998). In the absence of evidence as to what their 

testimony would have been, Petitioner cannot show that he was prejudiced by 

counsel’s failure to call them at trial. Clark v. Waller, 490 F.3d 551, 557 (6th Cir. 

2007). Similarly, Petitioner fails to specify how trial counsel should have 
9 

proceeded to more effectively cross-examine the prosecution’s witnesses to 

establish that they were lying. 

 In fact, the trial transcript reflects that defense counsel spent more than an 

hour cross-examining Petitioner’s wife, confronting her with various 

inconsistencies and contradictions in her testimony.2

 (8/26/11 Trial Tr. at 39, 41-

84, 90; ECF No. 24-6 at Pg ID 439, 441-84, 490.) Ms. Walton admitted during 

cross-examination that she had been drinking the day she was shot and told 

hospital staff that when she left home to buy more alcohol, she saw men fighting, 

heard a pop, and was hit by a bullet. (Id. at 42-43, Pg ID 442-43.) She also 

acknowledged that Petitioner never said he intended to kill her. (Id. at 51, Pg ID 

451.) Defense counsel also highlighted the inconsistencies and discrepancies in 

Ms. Walton’s testimony during closing argument. (9/12/11 Trial Tr. at 59-76, ECF 

No. 24-7 at Pg Id 634-51.) 

 Further “[c]ourts generally entrust cross-examination techniques, like other 

matters of trial strategy, to the professional discretion of counsel.” Henderson v. 

Norris, 118 F.3d 1283, 1287 (8th Cir. 1997); Jackson v. Bradshaw, 681 F.3d 753, 

 

2 The trial transcript reflects that evidence was introduced at 12:15 p.m., shortly 

before the prosecutor’s direct examination of Ms. Walton concluded and defense 

counsel commenced his cross-examination. (8/26/11 Trial Tr. at 39, ECF No. 24-6 

at Pg ID 439.) The prosecution did not engage in a redirect examination of Ms. 

Walton and following some questions by the trial judge, she was excused as a 

witness at 2:29 p.m. (Id. at 90, Pg ID 490.) 
10 

765 (6th Cir. 2012) (citng Henderson). “‘Most cross-examinations can be 

improved but if that were the standard of constitutional effectiveness, few would 

be the counsel whose performance pass muster.’” Jackson, 681 F.3d at 765 

(brackets omitted) (quoting Henderson, 118 F.3d at 1287) (additional quotation 

marks and citation omitted). “Impeachment strategy is a matter of trial tactics, 

and tactical decisions are not ineffective assistance of counsel simply because in 

retrospect better tactics may have been available.” Dell v. Straub, 194 F. Supp. 2d 

629, 651 (E.D. Mich. 2002). 

For these reasons, the Court concludes that Petitioner is not entitled to 

habeas relief based on his first, second, or third claims. 

B. Petitioner’s Claim Regarding the Prosecutor 

Petitioner next claims that the prosecutor knowingly presented perjured 

testimony from Ms. Walton and two of their children and withheld evidence in 

violation of Brady v. Maryland, 373 U.S. 83 (1963), that would have established 

that these witnesses testified falsely about “pivotal dates” (those being, when the 

shooting occurred, when Ms. Walton escaped, and when she reported the incident 

to the police). The trial court rejected Petitioner’s claims, finding no discrepancies 

where Petitioner specifically claimed discrepancies existed and that he failed to 

demonstrate that the prosecutor withheld any specific evidence or testimony. (ECF 

No. 24-10 at Pg ID 819-20.) 
11 

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) (internal quotation marks and citation 

omitted). A defendant’s due process rights are violated where the prosecutor 

knowingly solicits false testimony or allows knowingly false testimony to go 

uncorrected. Napue v. Illinois, 360 U.S. 264, 269 (1959) (citations omitted). To 

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

knew or should have known was false, a defendant must show: “‘(1) that the 

statement was actually false; (2) the statement was material; and (3) the 

prosecution 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)). The 

statement must be shown to be “indisputably false,” not simply “misleading.” 

Byrd v. Collins, 209 F.3d 486, 517-18 (6th Cir. 2000) (citing Lochmondy, 890 F.2d 

at 823). 

 Petitioner fails to demonstrate that Ms. Walton’s or the children’s testimony 

was “indisputably false.” He also does not show that the prosecutor knew or 

should have known that they testified falsely. Nor does Petitioner present any 

evidence to substantiate his assertion that the prosecutor “coached” Ms. Walton 

and the children to testify falsely. At most Petitioner points out inconsistencies in 

the testimony, but “‘mere inconsistencies in testimony by government witnesses do 
12 

not establish knowing use of false testimony.’” Coe, 161 F.3d at 343 (quoting

Lochmondy, 890 F.2d at 822). Moreover, one of the inconsistencies identified by 

Petitioner (that is, the date Ms. Walton made her statement to the police), was 

brought to the attention of the trial judge by defense counsel. The Sixth Circuit has 

“reject[ed] a due-process claim [based on the introduction of false testimony] 

where both parties had access to the alleged perjury and ‘were in equal positions to 

clarify the witness’s testimony.’” United States v. Leman, 574 F. App’x 699, 704-

05 (2014) (quoting Brooks v. Tennessee, 626 F.3d 876, 896 (6th Cir. 2010)); see 

also United States v. Ward, 190 F.3d 483, 491 (6th Cir. 1999) (rejecting claim that 

government witness committed perjury where “the court gave the defendants 

several opportunities to cross-examine and recross-examine the witnesses to bring 

any inconsistencies in testimony to the attention of the jury”); see also Norris v. 

Schotten, 146 F.3d 314, 334-35 (6th Cir. 1998) (concluding that there is no Brady 

violation where the defense had in its possession evidence demonstrating the 

witness’s inconsistent statements, and remarking that “there would be no need for a 

jury if trials did not contain such inconsistencies”). 

 Petitioner’s assertion that the prosecutor suppressed exculpatory evidence is 

based on his claim that the prosecutor knowingly introduced false testimony from 

Ms. Walton and the children. Petitioner does not identify other evidence that he 

claims is exculpatory and was withheld. Allegations that are merely conclusory or 
13 

which are merely speculative cannot support a Brady claim. See Burns v. Lafler, 

328 F. Supp. 2d 711, 723 (E.D. Mich. 2004) (citing Murphy v. Johnson, 205 F.3d 

809, 814 (5th Cir. 2000)). Petitioner’s false testimony claim fails for the reasons 

stated above. Thus his Brady claim related to that testimony also fails. 

 For these reasons, Petitioner is not entitled to relief on his fourth claim. 

C. Petitioner’s Ineffective Assistance of Appellate Counsel Claim 

In his fifth ground for relief, Petitioner asserts that his appellate counsel was 

ineffective for failing to raise his first through fourth claims on direct appeal. 

The Sixth Amendment guarantees a defendant the right to the effective 

assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396-397 

(1985). However, court appointed counsel does not have a constitutional duty to 

raise every non-frivolous issue requested by a defendant. Jones v. Barnes, 463 

U.S. 745, 751 (1983). This Court has already determined that Petitioner’s first 

through fourth claims lack merit. “[A]ppellate counsel cannot be found to be 

ineffective for ‘failure to raise an issue that lacks merit.’” Shaneberger v. Jones, 

615 F. 3d 448, 452 (6th Cir. 2010) (quoting Greer v. Mitchell, 264 F.3d 663, 676 

(6th Cir. 2001)). 

Petitioner therefore is not entitled to habeas relief based on his ineffective 

assistance of appellate counsel claim. 

 
14 

D. Petitioner’s Insufficiency of the Evidence Claim

Finally, Petitioner argues that there was insufficient evidence to establish his 

intent to kill his wife to support his conviction for assault with intent to commit 

murder. Although Petitioner denies shooting at his wife and claims she fabricated 

the entire incident, Petitioner argues that even if her testimony is believed, it 

establishes at most that they were playing “Russian Roulette.” Petitioner argues 

that this shows, at most, wanton indifference to the likelihood that the victim could 

be injured or killed, not specific intent to kill. Petitioner raised this claim on direct 

appeal. 

The Michigan Court of Appeals rejected Petition’s insufficiency of the 

evidence claim, reasoning that he “was not playing Russian roulette as it is 

commonly understood.” Walton, 2013 WL 2420980, at *2. The court explained: 

 Russian roulette is defined as “a lethal game of chance in which 

a person, using a revolver with one bullet, spins its cylinder, points the 

muzzle at his or her head, and pulls the trigger.” Random House 

Webster’s College Dictionary (2001). Unlike in the typical game of 

Russian roulette, testimony indicated that defendant loaded his 

revolver with multiple bullets and paused to check the chamber after 

pulling the trigger multiple times. Moreover, there is no evidence that 

defendant spun the cylinder before he pulled the trigger. He knew the 

position of the bullets, given his statement to Twonder that a bullet 

was “almost there.” Defendant again pulled the trigger until a bullet 

finally fired and struck Twonder. Given his knowledge of the position 

of the bullets after he initially attempted to fire his revolver, and the 

fact that he subsequently pulled the trigger multiple times until a 

bullet was discharged, it is fair to infer from defendant’s actions that 

he intended to kill Twonder. Viewing the evidence in the light most 
15 

favorable to the prosecution, a rational trier of fact could have 

concluded that defendant intended to kill Twonder 

Id. The state court’s decision is neither contrary to nor an unreasonable application 

of Supreme Court precedent. It also is not based on an unreasonable determination 

of the facts in light of the evidence presented at trial. 

 “[T]he 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). 

“[T]he 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). The court need not “ask itself whether it believes that the evidence at 

the trial established guilt beyond a reasonable doubt.” Id. at 318-19 (emphasis in 

original). “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.” Id. at 319 

(emphasis in original and citation omitted). The Jackson standard applies to jury 

and bench trials. See, e.g., U.S. v. Bronzino, 598 F. 3d 276, 278 (6th Cir. 2010). 

 A federal habeas court may not overturn a state court decision that rejects a 

sufficiency of the evidence claim merely because the federal court disagrees with 

the state court’s resolution of that claim. Instead, a federal court may grant habeas 
16 

relief only if the state court’s decision was an objectively unreasonable application 

of the Jackson standard. See Cavazos v. Smith, 565 U.S. 1, 2 (2011). “Because 

rational people can sometimes disagree, the inevitable consequence of this settled 

law is that judges will sometimes encounter convictions that they believe to be 

mistaken, but that they must nonetheless uphold.” Id. Indeed, for a federal habeas 

court reviewing a state court conviction, “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). A state court’s 

determination that the evidence does not fall below that threshold is entitled to 

“considerable deference under AEDPA.” Id.

 Finally, on habeas review, a federal court does not reweigh the evidence or 

reassess 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). A habeas court 

therefore must defer to the fact finder for its assessment of the credibility of 

witnesses. Matthews v. Abramajtys, 319 F. 3d 780, 788 (6th Cir. 2003); see also 

Butzman v. U.S., 205 F. 2d 343, 349 (6th Cir. 1953) (in a bench trial, credibility of 

witnesses is a question for the trial judge). 
17 

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

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, 581 N.W.2d 753, 759 (Mich. Ct. App. 1998), appeal 

denied, 581 N.W.2d 730 (Mich. 1998)). “[A]n intent to kill for purposes of this 

offense may not be proven by an intent to inflict great bodily harm or a wanton and 

willful disregard of the likelihood that the natural tendency of the acts will likely 

cause death or great bodily harm.” Id. (citing People v. Taylor, 375 N.W.2d 1, 7 

(Mich. 1985)). Instead, a conviction for assault with intent to commit murder must 

be premised upon a defendant’s specific intent to kill. Steele v. Withrow, 157 F. 

Supp. 2d 734, 740 (E.D. Mich. 2001) (citing People v. Edwards, 431 N.W. 2d 83 

(1988)). This “‘may be proven by inference from any facts in evidence.’” Warren, 

161 F.3d at 361 (quoting People v. Hoffman, 570 N.W.2d 146, 150 (Mich. Ct. App. 

1997), appeal denied, 583 N.W.2d 901 (Mich. 1998)). These facts include 

“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.” 

Id. (quoting Taylor, 375 N.W.2d at 8) (additional citations omitted). 

 The state court’s conclusion that the evidence at Petitioner’s trial established 

beyond a reasonable doubt the elements of assault with intent to commit murder 
18 

was not an objectively unreasonable application of the Jackson standard. The 

evidence presented showed that Petitioner loaded a revolver with multiple bullets, 

pausing to check the location of the bullets after pulling the trigger multiple times. 

Petitioner continued to pull the trigger until a bullet discharged and struck Ms. 

Walton. 

 The Court therefore rejects Petitioner’s sufficiency of the evidence claim as 

a ground entitling him to habeas relief. 

IV. Conclusion 

For the reasons set forth above, the Court concludes that Petitioner is not 

entitled to habeas relief under § 2254. 

In order to appeal the Court’s decision, Petitioner must obtain a certificate 

of appealability. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A certificate of 

appealability may issue “only if the applicant has made a substantial showing of 

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner 

satisfies this standard by demonstrating that jurists of reason could disagree with 

the district court’s resolution of his constitutional claims or that jurists could 

conclude the issues presented are adequate to deserve encouragement to proceed 

further.” Miller-El, 537 U.S. at 327. 

Reasonable jurists could not debate the Court’s assessment of Petitioner’s 

claims, nor conclude that the issues deserve encouragement to proceed further. 
19 

The Court therefore declines to issue a certificate of appealability. The Court also 

declines to grant Petitioner leave to appeal in forma pauperis, because any appeal 

would be frivolous. 

 Accordingly, 

IT IS ORDERED that Petitioner’s application for the writ of habeas corpus 

is DENIED WITH PREJUDICE; 

IT IS FURTHER ORDERED that the Court declines to issue a certificate 

of appealability and leave to appeal in forma pauperis.

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: October 23, 2018 

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

record and/or pro se parties on this date, October 23, 2018, by electronic and/or 

U.S. First Class mail. 

 s/ R. Loury 

 Case Manager