UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

CHARLES E. JONES, #226897, 

 Petitioner, Case No. 14-cv-14624 

v Honorable Thomas L. Ludington 

SHERRY L. BURT, 

 Respondent. 

__________________________________________/ 

ORDER DENYING PETITIONER’S PETITION FOR HABEAS CORPUS PURSUANT 

TO 28 U.S.C. § 2254, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING 

LEAVE TO APPEAL IN FORMA PAUPERIS 

Petitioner, Charles E. Jones, confined at the Muskegon Correctional Facility in 

Muskegon, Michigan, filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. 

§ 2254. In the Livingston County Circuit Court, a jury convicted Petitioner (1) of assault with 

intent to do great bodily harm less than murder, Mich. Comp Laws § 750.84; (2) aggravated 

stalking, Mich. Comp Laws § 750.411i; (3) false threat of terrorism, Mich. Comp Laws § 

750.543m; and (4) being a fourth felony habitual offender, Mich. Comp Laws § 769.12. 

Petitioner was sentenced to concurrent terms of eighteen to forty years for each conviction. 

On December 8, 2014 Petitioner filed a petition seeking Habeas Corpus (ECF No. 1), 

contending that (1) his due process rights were violated by the introduction of prejudicial 

evidence of prior acts of domestic violence, (2) the trial judge erred in refusing to appoint 

substitute counsel for Petitioner, (3) the trial judge erred in failing to suppress Petitioner’s 

confession on the ground that the police questioned Petitioner after he invoked his right to 

remain silent, (4) the trial judge failed to obtain a valid waiver of counsel before permitting 

Petitioner to represent himself at the hearing to suppress his confession, and (5) Petitioner’s trial 

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counsel was ineffective. On June 15, 2015 Respondent filed an answer to the petition, asserting 

that the claims lack merit. The Court agrees that Petitioner’s claims lack merit, and therefore the 

petition will be denied. 

I. 

 The relevant facts were summarized by the Michigan Court of Appeals, and 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): 

Defendant’s convictions stem from his conduct toward his former girlfriend, 

hereafter the victim. During trial, the prosecution presented evidence that, after a 

series of violent acts and threats against the victim, some of which resulted in two 

earlier convictions of domestic violence, defendant sprayed the victim with an 

inflammable liquid and set her on fire. An acquaintance testified that, while the 

police were searching for defendant in connection with the latter incident, 

defendant stated that he was on his way to the victim’s location with three cans of 

gas, two propane tanks, and two shotguns, and that defendant spoke of “suicide by 

police.” A police detective testified that defendant telephoned him and said he 

was going to track the victim down and blow up the bank where she worked. In 

an interview with the detective that followed, defendant stated that he never 

intended to set the victim on fire, but only wanted to spray her with perfume. 

Defendant stated that he suspected that the victim’s cigarette caused what he 

sprayed on her to ignite. 

 People v. Jones, No. 308293, 2013 WL 5630075, at *1 (Mich. Ct. App. Oct. 15, 2013). 

 Petitioner’s conviction was affirmed on appeal. Id., lv. Den. 495 Mich. 992, 845 N.W.2d 

106 (2014). 

 Petitioner seeks a writ of habeas corpus on the following grounds: 

I. Petitioner’s right to due process was violated when the trial court allowed the 

prosecutor to introduce unfairly prejudicial evidence of other alleged domestic 

assaults not tending to show motive, intent, or absence of accident. 

II. Petitioner’s right to due process was violated when the trial court refused to 

appoint substitute counsel after Petitioner and his counsel were in conflict about 

fundamental trial tactics on the charge of making a false terrorism threat. 

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III. The trial court violated Petitioner’s due process rights by admitting statements 

Petitioner made to a detective during custodial interrogation where the detective 

did not scrupulously honor Petitioner’s silence following the Miranda warning by 

another officer the previous day. Furthermore due process requires a new trial 

where the trial court accepted appellant’s equivocal waiver of counsel prior to a 

pretrial hearing on suppression. 

IV. Petitioner was deprived of his right to effective assistance of counsel at trial 

when Petitioner’s counsel elicited Petitioner’s prior forgery and drunk driving 

conviction while cross-examining the complainant. 

V. Petitioner’s defense counsel was constitutionally ineffective in failing before 

trial to correct the defense expert’s mistaken recollection that Petitioner had 

admitted threatening to blow up the bank where the complainant was employed. 

II. 

 The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 

Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” 

the standard of review federal courts must apply when considering applications for a writ of 

habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). 

 As amended, 28 U.S.C. § 2254(d) permits a federal court to issue the writ only if the state 

court decision on a federal issue “was contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined by the Supreme Court,” or it amounted to “an 

unreasonable determination of the facts in light of the evidence presented in the State court 

proceeding.” 28 U.S.C. § 2254(d)(1) & (2); Franklin v. Francis, 144 F. 3d 429, 433 (6th Cir. 

1998). Mere error by the state court will not justify issuance of the writ; rather, the state court’s 

application of federal law “must have been objectively unreasonable.” Wiggins, 539 U.S. at 520-

21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000) (internal quotes omitted)). 

Additionally, this Court must presume the correctness of state court factual determinations. 28 

U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by 

a person in custody pursuant to the judgment of a State court, a determination of a factual issue 

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made by a State court shall be presumed to be correct.”); see also West v. Seabold, 73 F. 3d 81, 

84 (6th Cir. 1996) (stating that “[t]he court gives complete deference to state court findings of 

historical fact unless they are clearly erroneous”). 

 The Supreme Court has explained the proper application of the “contrary to” clause as 

follows: 

A state-court decision will certainly be contrary to [the Supreme Court’s] clearly 

established precedent if the state court applies a rule that contradicts the 

governing law set forth in our cases.... 

A state-court decision will also be contrary to this Court’s clearly established 

precedent if the state court confronts a set of facts that are materially 

indistinguishable from a decision of this Court and nevertheless arrives at a result 

different from [the Court’s] precedent. 

 Williams, 529 U.S. at 405-06. 

 The Supreme Court has held that a federal court should analyze a claim for habeas corpus 

relief under the “unreasonable application” clause of § 2254(d)(1) “when a state-court decision 

unreasonably applies the law of this Court to the facts of a prisoner’s case.” Id. at 409. As stated 

in Renico v. Lett: 

We have explained that an unreasonable application of federal law is different from an 

incorrect application of federal law. Indeed, a federal habeas court may not issue the writ 

simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly. Rather, 

that application must be objectively unreasonable. This distinction creates a substantially 

higher threshold for obtaining relief than de novo review. AEDPA thus imposes a highly 

deferential standard for evaluating state-court rulings, and demands that state-court 

decisions be “given the benefit of the doubt. 

Renico v. Lett, 559 U.S. 766, 773 (2010) (finding that the state court’s rapid declaration of a 

mistrial on grounds of jury deadlock was not unreasonable even where “the jury only deliberated 

for four hours, its notes were arguably ambiguous, the trial judge’s initial question to the 

foreperson was imprecise, and the judge neither asked for elaboration of the foreperson’s 

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answers nor took any other measures to confirm the foreperson’s prediction that a unanimous 

verdict would not be reached”) (internal quotation marks and citations omitted); see also 

Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting the Supreme Court “has held on 

numerous occasions that it is not an unreasonable application of clearly established Federal law 

for a state court to decline to apply a specific legal rule that has not been squarely established by 

this Court”) (internal quotation marks and citations omitted); Phillips v. Bradshaw, 607 F. 3d 

199, 205 (6th Cir. 2010); Murphy v. Ohio, 551 F. 3d 485, 493-94 (6th Cir. 2009); Eady v. 

Morgan, 515 F. 3d 587, 594-95 (6th Cir. 2008); Davis v. Coyle, 475 F. 3d 761, 766-67 (6th Cir. 

2007); King v. Bobby, 433 F. 3d 483, 489 (6th Cir. 2006); Rockwell v. Yukins, 341 F. 3d 507, 512 

(6th Cir. 2003)(en banc). 

III. 

A. 

 Petitioner first argues that his due process rights were violated when the prosecutor 

introduced evidence of Petitioner’s prior acts of domestic violence against his former wife and 

two ex-girlfriends solely to establish Petitioner’s propensity to commit the charged offenses, in 

violation of M.R.E. 404(b). Petitioner further alleges that this evidence was unduly prejudicial 

and hence should not have been admitted under Mich. Comp. Laws §768.27b. 

 It is “not the province of a federal habeas court to reexamine state-court determinations 

on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A federal court is 

limited in federal habeas review to deciding whether a state court conviction violates the 

Constitution, laws, or treaties of the United States. Id. Thus, errors in the application of state 

law, especially rulings regarding the admissibility of evidence, are usually not questioned by a 

federal habeas court. See Seymour v. Walker, 224 F. 3d 542, 552 (6th Cir. 2000). 

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 Petitioner’s claim that the state court violated M.R.E. 404(b) or any other provision of 

state law by admitting evidence of his prior domestic violence is non-cognizable on habeas 

review. See Bey v. Bagley, 500 F 3d 514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72 (Supreme 

Court’s habeas powers did not permit Court to reverse state court conviction based on their belief 

that the state trial judge erred in ruling that prior injury evidence was admissible as bad acts 

evidence under California law); Dowling v. U.S., 493 U.S. 342, 352-53 (1990)(admission at 

defendant’s bank robbery trial of “similar acts” evidence that he had subsequently been involved 

in a house burglary for which he had been acquitted did not violate due process). The admission 

of this “prior bad acts” or “other acts” evidence against Petitioner at his state trial does not entitle 

him to habeas relief, because there is no clearly established Supreme Court precedent holding 

that a state violates a habeas petitioner’s due process rights by admitting propensity evidence in 

the form of “prior bad acts” evidence. See Bugh v. Mitchell, 329 F. 3d 496, 512 (6th Cir. 2003). 

Given the lack of Supreme Court authority on the issue of whether a state court violates a habeas 

petitioner’s due process rights by the admission of evidence to establish Petitioner’s propensity 

to commit criminal acts, the Michigan Court of Appeals’ rejection of Petitioner’s claim was not 

an unreasonable application of clearly established federal law. See Carey v. Musladin, 549 U.S. 

70, 77 ( 2006). 

 Petitioner’s related claim that he was denied a fair trial by the admission of irrelevant and 

highly prejudicial evidence cannot form the basis for habeas relief because it also involves a state 

law evidentiary issue. See Hall v. Vasbinder, 551 F. Supp. 2d 652, 676 (E.D. Mich. 2008); rev’d 

on other grds 563 F.3d 222 (6th Cir. 2009); See also Oliphant v. Koehler, 451 F. Supp. 1305, 

1308 (W.D. Mich. 1978). Therefore, Petitioner is not entitled to relief on his first claim. 

B. 

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 Petitioner next contends that his Sixth Amendment right to counsel was violated when 

the trial judge refused his request to appoint substitute counsel. This claim is also without merit. 

 During the fourteen months between the arraignment and the trial date, the trial judge 

appointed Petitioner four different trial attorneys: David Prine, Mark Scharrer, Steven Dodge, 

and Heather Nalley. (See Livingston County Docket Sheet, at 1-4). Prine and other attorneys 

from his firm were dismissed at Petitioner’s request because he accused them of deficient and 

unethical representation. (Tr. 6/25/10, pp. 7-9; Tr. 9/16/10, pp. 4-5). Scharrer and Dodge were 

appointed and both were subsequently discharged due to conflicts of interest. (See Livingston 

County Docket Sheet, at 4; Tr. 5/13/11, pp. 4-5). Heather Nalley was appointed in October 

2010. Nalley requested an adjournment in order to review the large amount of materials 

involved in this case. (Tr. 10/15/10, pp. 3-4). 

 After Nalley was appointed as substitute counsel, Petitioner filed no fewer than six 

separate motions for her to be removed from the case. Petitioner’s reasons included an imagined 

conflict of interest over a horseshoe league, Nalley’s failure to effectively communicate with 

Petitioner, and Nalley’s failure to file motions Petitioner asked her to file. (Tr. 1/20/11, pp. 3-5; 

Tr. 2/17/11, pp. 3-5; Tr. 4/7/11, pp. 4-6; Tr. 5/13/11, pp. 3-5, 11; Tr. 6/2/11, pp. 3-5; Tr. 8/26/11, 

pp. 5-7). Because the trial judge found that Nalley was “vigorously” and “zealous[ly]” 

representing Petitioner in an “exceptional” manner, the court denied nearly all of these requests. 

(Tr. 1/20/11, p. 6; Tr. 2/17/11, pp. 5, 7; Tr. 4/7/11, p. 7; Tr. 5/13/11, pp. 14-15; Tr. 8/26/11, pp. 

11-12). 

 During the course of Ms. Nalley’s representation, Petitioner made several requests to 

represent himself. The judge warned Petitioner each time of the dangers of self-representation 

before permitting Petitioner to represent himself. (Tr. 5/13/11, p. 12; Tr. 6/2/11, pp. 5-12; Tr. 

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6/3/11, pp. 4-5, 11-12, 16; Tr. 8/26/11, pp. 16-21, 22, 29; Tr. 9/23/11, p. 3). Once Petitioner 

realized that his library access was restrained and he did not have the ability to do online legal 

research, the trial court reappointed Nalley as defense counsel. (Tr. 6/16/11, pp. 3-7). Petitioner 

requested for Nalley to be removed yet again. The trial judge did so briefly, but then reappointed 

her two days before trial at Petitioner’s request. (Tr. 8/26/11, pp. 5-7, 16-22; Tr. 10/12/11, pp. 3-

5). 

 The Michigan Court of Appeals rejected Petitioner’s claim: 

At defendant’s request, the trial court appointed four different attorneys to assist 

defendant with his defense, and defendant settled on the last of the attorneys, 

Heather Nalley, for a time, but then repeatedly asked that she be replaced with 

new counsel. Finally, the trial court granted defendant’s request to represent 

himself, with Nalley serving as standby counsel, and this arrangement held for 

several months. However, within a few weeks of trial, defendant again requested 

appointed counsel, stating that he would accept anyone but Nalley. The trial court 

denied the request, advising defendant that if he desired representation, Nalley 

would remain his court appointed attorney. 

... 

In this case, defendant requested a waiver of counsel on the grounds that Nalley 

did not spend adequate time preparing his defense, failed to file motions he 

requested, failed to retrieve evidence he suggested, and released documents to an 

expert witness without authorization. The trial court properly found that none of 

these issues constituted proper cause for substitution of counsel. The choice of 

theories to pursue, and the preparation of an expert witness, are matters of 

professional judgment and trial strategy rightfully entrusted to the attorney. 

Further, defendant’s general complaints about Nalley’s dedication or case 

preparation do not warrant good cause for substitution of counsel. Moreover, 

Nalley was defendant’s fourth attorney. Granting defendant yet another 

substitution of counsel would have unreasonably disrupted the judicial process. 

Jones, 2013 WL 5630075, * 3 (internal citations omitted). 

 The Sixth Amendment right to the assistance of counsel does not guarantee a criminal 

defendant that he or she will be represented by a particular attorney. Serra v. Michigan 

Department of Corrections, 4 F. 3d 1348, 1351 (6th Cir. 1993)(citing Caplin & Drysdale v. 

United States, 491 U.S. 617, 624 (1989)). A criminal defendant who has the desire and the 

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financial means to retain his own counsel “should be afforded a fair opportunity to secure 

counsel of his own choice.” Id. (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)). Indeed, 

“[t]he Sixth Amendment guarantees the defendant the right to be represented by an otherwise 

qualified attorney whom that defendant can afford to hire, or who is willing to represent the 

defendant even though he is without funds.” U.S. v. Gonzalez-Lopez, 548 U.S. 140, 144 

(2006)(quoting Caplin & Drysdale, 491 U.S. at 624-25). 

However, while a criminal defendant who can afford his or her own attorney has a right 

to a chosen attorney, that right is a qualified right. Serra, 4 F. 3d at 1348 (citing to Wheat v. 

United States, 486 U.S. 153, 159 (1988)). Stated differently, the right to counsel of one’s own 

choice is not absolute. See Wilson v. Mintzes, 761 F. 2d 275, 280 (6th Cir. 1985). “Although a 

criminal defendant is entitled to a reasonable opportunity to obtain counsel of his choice, the 

exercise of this right must be balanced against the court’s authority to control its docket.” Lockett 

v. Arn, 740 F. 2d 407, 413 (6th Cir. 1984); See also Gonzalez-Lopez, 548 U.S. at 151-52) 

(“Nothing we have said today casts any doubt or places any qualification upon our previous 

holdings that limit the right to counsel of choice and recognize the authority of trial courts to 

establish criteria for admitting lawyers to argue before them...We have recognized a trial court’s 

wide latitude in balancing the right to counsel of choice against the needs of fairness, and against 

the demands of its calendar.”) (internal citations omitted). Finally, the right to counsel of choice 

may not be used to unreasonably delay a trial. See Linton v. Perini, 656 F.2d 207, 209 (6th Cir. 

1981). 

In reviewing a motion for substitution of counsel, a reviewing court should consider “the 

timeliness of the motion; the adequacy of the [trial] court’s inquiry into the defendant’s 

complaint; and the asserted cause for that complaint, including the extent of the conflict or 

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breakdown in communication between lawyer and client (and the client’s own responsibility, if 

any, for that conflict).” Martel v. Clair, 132 S. Ct. 1276, 1287 (2012). “Because a trial court’s 

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

it only for an abuse of discretion.” Id. 

Petitioner argues that he was entitled to substitute counsel because Ms. Nalley did not 

spend enough time preparing his defense, failed to file motions he requested, failed to retrieve 

evidence that Petitioner wanted, and released documents to the defense expert without 

Petitioner’s authorization. 

 Petitioner is not entitled to relief for several reasons. First, Petitioner failed to establish 

good cause for substitution of counsel because he failed to show that the conflict between 

himself and his attorney was so great that it resulted in a total lack of communication, preventing 

an adequate defense. See United States v. Jennings, 83 F. 3d 145, 149 (6th Cir. 1996). Petitioner 

was not entitled to substitute counsel because his complaints against counsel involved 

differences of opinion regarding trial strategy rather than any irreconcilable conflict or total lack 

of communication. See e.g. Adams v. Smith, 280 F. Supp. 2d 704, 720 (E.D. Mich. 2003). The 

record in this case does not demonstrate that the disagreements between Petitioner and his 

attorney rose to the level of a conflict sufficient to justify the substitution of counsel. See United 

States v. Sullivan, 431 F.3d 976, 981 (6th Cir. 2005). 

 Second, the trial judge sufficiently inquired into Petitioner’s allegations of ineffectiveness 

against counsel at the hearings on Petitioner’s various motions. In light of the fact that there 

were “multiple lengthy discussions” with Petitioner and his defense counsel about their alleged 

conflicts, the trial judge did not abuse his discretion in denying Petitioner’s motion to appoint 

him a fifth attorney. See U.S. v. Vasquez, 560 F.3d 461, 467 (6th Cir. 2009). 

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 Finally, Petitioner is unable to show that he was prejudiced by the failure of the trial court 

to appoint substitute counsel, in light of the fact that he received effective assistance of counsel 

at trial. Vasquez, 560 F.3d at 468. “The strained relationship” between Petitioner and his 

attorney was not a “complete breakdown in communication” that prevented Petitioner from 

receiving an adequate defense. Id.

 The Michigan Court of Appeals’ conclusion that the trial judge’s denial of Petitioner’s 

motion to substitute counsel did not violate his Sixth Amendment rights was not an unreasonable 

application of federal law. For this reason, Petitioner is not entitled to federal habeas relief. See 

Henness v. Bagley, 644 F.3d 308, 322 (6th Cir. 2011). 

C. 

 Petitioner next contends that the trial judge erred in failing to suppress a statement that he 

made to the police, because Petitioner was interrogated after he invoked his right to remain 

silent. As a related claim, Petitioner contends that the trial judge erred in permitting Petitioner to 

represent himself at the suppression hearing, without first obtaining a valid waiver of the right to 

counsel. 

 The Michigan Court of Appeals rejected Petitioner’s suppression claim: 

At the hearing regarding defendant’s motion to suppress, officer Gary Mitts 

testified that he and another officer were sent to the Wexford County Jail to pick 

defendant up and transport him to the Livingston County Jail. The officers took 

defendant into custody and began the transport at about 5:30 p.m. Mitts testified 

that as soon as defendant was placed in the back of the patrol car he was read his 

Miranda warnings. Defendant stated that he knew his Miranda rights, and when 

asked specifically what the rights entailed he stated that “it means I can keep my 

mouth shut if I want to.” The officers made no attempt to interrogate defendant 

during the transport from Wexford County to Livingston County; however, after 

about 45 minutes defendant began asking the officers questions. After defendant 

started initiating conversation, Mitts testified that he informed defendant that if 

defendant wanted to talk he would read defendant his Miranda rights again and 

then they would both ask questions. Defendant then stated “I’m not sayin’ 

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nothing.” No further attempts to question defendant or obtain a waiver of his 

rights were made by the transport officers. 

Detective David Fogo also testified at the suppression hearing. He testified that 

he interviewed defendant at the Livingston County Jail sometime “before lunch” 

the day after defendant was taken into custody and transported from Wexford 

County. Fogo testified that the interview lasted about 30 to 40 minutes, and that 

defendant appeared calm, seemed to understand everything that was going on, and 

seemed eager to talk to him. Fogo testified that at the beginning of the interview 

he asked defendant whether defendant “recalled Officer Mitts advising him of his 

Miranda rights the day before,” and defendant stated that he “understood the 

rights.” Fogo testified that he “clarified” that defendant understood his rights and 

then specifically asked defendant “if he wanted to talk,” and defendant said “yes.” 

The trial court denied defendant’s motion to suppress, concluding that 

from the short amount of video that we watched from May the 4th 

when he was picked up from the Wexford County Jail, it was clear 

to mean [sic], and I so find, that Mr. Jones was aware of the rights; 

he knew what the rights were. And he exercised the right not to 

talk to the officer about the incident. Said he could be silent; he 

was silent. 

 ...I am going to deny the motion by the Defendant. I do find that 

Mr. Jones had a knowing of [sic] the—his rights. That he was in a 

condition or a state of mind at—that they were voluntarily done. I 

don’t find his elaborate discussion during the half hour video that 

we watched of the May 5th interview showed anything but a 

person that responded clearly, coherently, understandingly, 

intelligently, to the questions ... that were asked. 

On appeal, defendant argues that the trial court erred by denying his motion to 

suppress the statements he made during the interview with Detective Fogo. 

Specifically, defendant argues that he invoked his right to remain silent during 

transport, and that Detective Fogo failed to scrupulously honor his invocation of 

his right to remain silent. 

At the outset, we question whether defendant ever actually invoked his right to 

remain silent under the circumstances of this case. It is clear from the testimony 

at the hearing that the transport officers did not intend to interrogate or attempt to 

interrogate defendant. Nor did the officers specifically ask defendant to waive his 

Miranda rights. Nevertheless, even assuming defendant properly invoked his 

rights during transport, we find no Miranda violation. The first attempt to 

interrogate defendant did not occur until the day after he was transported and first 

read his Miranda rights. Further, before Detective Fogo conducted the 

interrogation, he clarified that defendant understood his Miranda rights and was 

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willing to waive them. Defendant acknowledged that he had been read his 

Miranda rights before the interview was conducted, and he further acknowledged 

that he understood his rights, but wanted to talk to Detective Fogo. While 

defendant denies Detective Fogo’s account of what happened, claiming that he 

did not agree to speak to the detective and noting that no recording verifies the 

detective’s account, the trial court was free to judge the credibility of the 

witnesses. Moreover, defendant cites no authority for the proposition that the 

police are required to create electronic records of such waivers. Thus, we 

conclude that there was no Miranda violation and suppression was properly 

denied. The police scrupulously honored defendant’s Miranda rights because 

defendant clearly understood his rights and agreed to talk to the detective and 

there was a significant lapse of time between defendant’s first invocation of his 

right to remain silent and the subsequent attempt to obtain a waiver. 

 People v. Jones, 2013 WL 5630075, at *5-6 (internal citations and footnotes omitted). 

 A prosecutor may not use a defendant’s statements that stem from custodial interrogation 

unless the prosecutor can demonstrate the use of procedural safeguards effective to secure a 

defendant’s privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966). 

Unless other means are devised to inform a suspect of his right to silence and a “continuous 

opportunity to exercise it,” the following warnings must be given to a suspect: 

1. the person must be warned that he has a right to remain silent; 

2. that any statement he does make may be used against him; 

3. and that he has a right to the presence of an attorney, either appointed or 

retained. 

 Miranda, 384 U.S. at 444. The Supreme Court in Miranda further explained: 

“Once warnings have been given, the subsequent procedure is clear. If the 

individual indicates in any manner, at any time prior to or during questioning, that 

he wishes to remain silent, the interrogation must cease. At this point he has 

shown that he intends to exercise his Fifth Amendment privilege; any statement 

taken after the person invokes his privilege cannot be other than the product of 

compulsion, subtle or otherwise. Without the right to cut off questioning, the 

setting of in-custody interrogation operates on the individual to overcome free 

choice in producing a statement after the privilege has been once invoked.” 

 Miranda, 384 U.S., at 473-474. 

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 The admissibility of statements obtained after a criminal suspect has invoked his right to 

remain silent depends on whether the police “scrupulously honored” the suspect’s invocation of 

his “right to cut off questioning.” Michigan v. Mosley, 423 U.S. 96, 104 (1975). Where the 

police “scrupulously honor” such an invocation, there is no per se prohibition against resuming 

questioning after the invocation of the right to silence, and a suspect may be approached again 

later to seek a waiver. See id. at 104–05. 

 The Michigan Court of Appeals reasonably rejected Petitioner’s claim. When Petitioner 

first spoke with the officers who transported him to the Livingston County Jail, the police 

honored his request to cut off questioning and did not continue to interrogate him. Detective 

Fogo did not speak with Petitioner until the next day, at which time he asked Petitioner if he 

remembered the Miranda warnings which had been given to him by the officers the day before. 

Petitioner confirmed that he did. Petitioner then indicated that he was willing to speak with 

Detective Fogo. The Michigan Court of Appeals’ conclusion that Petitioner’s statement was 

admissible was reasonable because: (1) the police advised Petitioner of his Miranda rights when 

he was transported back from Wexford County to the Livingston County Jail, (2) the police 

immediately ceased speaking with Petitioner when he invoked his right to remain silent, (3) 

Detective Fogo only resumed questioning after a significant period of time, and (4) the detective 

reminded Petitioner of his Miranda rights at this second interview. See Davie v. Mitchell, 547 

F.3d 297, 310 (6th Cir. 2008). 

 Even assuming that Petitioner’s statement was taken in violation of Miranda, he still is 

not entitled to relief because the admission of his statement was harmless error. In Brecht v. 

Abrahamson, 507 U.S. 619, 637 (1993), the U.S. Supreme Court held that for purposes of 

determining whether federal habeas relief must be granted to a state prisoner on the ground of 

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federal constitutional error, the appropriate harmless error standard to apply is whether the error 

had a substantial and injurious effect or influence in determining the jury’s verdict. The 

admission of evidence obtained from a suspect in violation of Miranda is considered harmful 

only if it has a substantial and injurious effect in determining the jury’s verdict. See Kyger v. 

Carlton, 146 F. 3d 374, 381-82 (6th Cir. 1998). In light of the overwhelming evidence of guilt in 

this case, the admission of Petitioner’s statement to the police did not have a substantial or 

injurious influence or effect on the jury’s verdict. Id. Petitioner is not entitled to relief on this 

portion of his third claim. 

 Petitioner further contends that the trial judge erred in permitting Petitioner to represent 

himself at the hearing on his motion to suppress without obtaining a valid waiver of counsel. 

The Michigan Court of Appeals rejected the claim: 

Defendant alternatively argues that the trial court erred by proceeding with the 

suppression hearing in reliance on his continued insistence on self-representation. 

We disagree. 

At the beginning of the suppression hearing, the trial court reminded defendant 

that he was entitled to appointed counsel: 

Q. Mr. Jones, you understand you do have the right to an attorney? 

A. Yes, sir. 

Q. If you can’t afford one I would put Ms. Nalley back on the case for you; you 

understand that? 

A. Yes, sir. 

Q. And that would be at public expense; you understand that? 

A. Yes, sir. 

Q. You understand the maximum possible punishment on this case is up to life in 

prison? 

A. Yes, sir. 

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Q. You understand, and ... I’ll express it here again today, in the opinion of the 

Court you’re doing yourself a disservice by representing yourself-not availing 

yourself of an attorney to assist you. I’m not asking for you to comment on that. 

You have exercised your constitutional right to represent yourself. I’ve told you 

in the past that I respect that. Knowing these things, Mr. Jones, do you wish to 

continue representing yourself or do you wish to avail yourself of an attorney? 

A. Represent myself. 

The trial court accepted defendant’s waiver of counsel and proceeded with the 

hearing. 

... 

In this case, defendant was given several opportunities to proceed with appointed 

legal representation. Before beginning the suppression hearing, the trial court 

informed defendant that he had a right to an attorney at public expense, and 

offered to reappoint attorney Nalley if he wanted counsel, and also reminded 

defendant that he was vulnerable to life imprisonment. Further, the trial court 

expressed its opinion that defendant was doing himself a disservice by insisting 

on self-representation. Nonetheless, when the trial court asked defendant if he 

wanted to continue in propria persona, defendant responded unequivocally, “yes, 

sir.” The trial court substantially complied with Williams and MCR 6.005(D)(1), 

and thus properly accepted defendant’s waiver of counsel. 

Moreover, to the extent that defendant is arguing that the trial court erred by 

forcing defendant to choose between self-representation and the services of 

Nalley, we find no error for the same reasons that we concluded that the trial court 

did not err by refusing to appoint a fifth public defender as defendant’s attorney, 

as discussed supra. 

 People v. Jones, 2013 WL 5630075, at * 6-7. 

 The United States Supreme Court has held that a waiver of the Sixth Amendment right to 

counsel is valid only when it reflects “an intentional relinquishment or abandonment of a known 

right or privilege.” Patterson v. Illinois, 487 U.S. 285, 292 (1988) (quoting Johnson v. Zerbst, 

304 U.S. 458, 464 (1938)). A defendant’s waiver of his right to counsel must “be knowing, 

voluntary, and intelligent.” Iowa v. Tovar, 541 U.S. 77, 88 (2004). The waiver must be “done 

with sufficient awareness of the relevant circumstances.” Id. at 81 (internal quotation marks 

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omitted). It is the criminal defendant’s burden to prove that he or she “did not competently and 

intelligently waive” his or her right to the assistance of counsel. Id. at 92. 

 Before a criminal defendant waives his or her right to counsel, he or she “should be made 

aware of the dangers and disadvantages of self-representation,” so that the record establishes that 

the defendant knows what he or she is doing “and his choice is made with eyes open.” Faretta v. 

California, 422 U.S. 806, 835 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 

269, 279 (1942)). The Supreme Court, however, has not “prescribed any formula or script to be 

read to a defendant who states that he elects to proceed without counsel.” Tovar, 541 U.S. at 88. 

The information that a criminal defendant must have in order to make an intelligent election 

“will depend on a range of case-specific factors, including the defendant’s education or 

sophistication, the complex or easily grasped nature of the charge, and the stage of the 

proceeding.” Id. The failure of a district court in a federal criminal case to give a particular 

prophylactic warning and conduct a particular inquiry in determining whether a defendant should 

be permitted to waive his or her right to counsel does not in and of itself require reversal of a 

conviction. See U.S. v. McDowell, 814 F. 2d 245, 248-49 (6th Cir. 1987). There is thus no 

clearly established federal law, as determined by the Supreme Court, requiring any specific 

colloquy to determine whether a defendant’s waiver of counsel was made with “eyes open.” 

Mack v. Holt, 62 Fed. Appx. 577, 580 (6th Cir. 2003); See also Sullivan v. Pitcher, 82 Fed. 

Appx. 162, 165 (6th Cir. 2003) (a formal inquiry into a defendant’s desire to proceed pro se “is 

not a sine qua non of constitutional waiver”). 

 In the present case, the judge advised Petitioner that he had a right to court-appointed 

counsel to assist him at the hearing and was willing to reappoint Ms. Nalley to represent 

Petitioner. The judge warned Petitioner that he faced a maximum of life in prison. The judge 

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further admonished Petitioner that he was doing a “disservice” to himself by proceeding pro se at 

the suppression hearing. At several previous hearings, the judge had also warned Petitioner of 

the dangers of self-representation. Under the circumstances, the Michigan Court of Appeals 

reasonably concluded that Petitioner’s waiver of the right to counsel was valid. Petitioner is not 

entitled to relief on his third claim. 

D. 

 In his fourth and fifth claims, Petitioner contends that he was denied the effective 

assistance of trial counsel during the times in which Ms. Nalley was representing him. 

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

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

demonstrate that, considering all of the circumstances, counsel’s performance was so deficient 

that the attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment. 

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

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

professional assistance. Id. In other words, Petitioner must overcome the presumption that, under 

the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 

689. Second, the defendant must show that such performance prejudiced his defense. Id. To 

demonstrate prejudice, the defendant must show that “there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. The Supreme Court’s holding in Strickland places the burden on a 

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

reasonable probability that the result of the proceeding would have been different, but for 

counsel’s allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009). 

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 More importantly, on habeas review, “the 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. at 123 (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The pivotal question 

is whether the state court’s application of the Strickland standard was unreasonable. This is 

different from asking whether defense counsel’s performance fell below Strickland’s standard.” 

Harrington v. Richter, 562 U.S. at 101. Indeed, “because the Strickland standard is a general 

standard, a state court has even more latitude to reasonably determine that a defendant has not 

satisfied that standard.” Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. 652, 

664 (2004)). Pursuant to the § 2254(d)(1) standard, a “doubly deferential judicial review” 

applies to a Strickland claim brought by a habeas petitioner. Id. This means that on habeas 

review of a state court conviction, “[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. “Surmounting Strickland’s high bar is never an easy task.” 

Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). 

 Petitioner first claims that defense counsel was ineffective for eliciting from the victim 

during cross-examination that Petitioner had forgery and drunk driving convictions. As the 

Michigan Court of Appeals noted in rejecting Petitioner’s claim, defense counsel did not 

specifically question the victim about these convictions but was merely questioning the victim 

about Petitioner’s history and convictions for “hurting women” when the victim volunteered the 

information concerning the forgery and drunk driving. See Jones, 2013 WL 5630075, at *10. 

The victim’s answer was non-responsive to counsel’s question. This Court rejects Petitioner’s 

claim that counsel was ineffective for eliciting this testimony from the victim, because the 

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victim’s remarks about Petitioner’s forgery and drunk driving convictions were a non-responsive 

answer to a legitimate question from defense counsel. See Hodge v. Haeberlin, 579 F. 3d 627, 

641 (6th Cir. 2009). 

 In his fifth claim, Petitioner claims that his defense counsel was ineffective for failing to 

correct the defense expert’s mistaken recollection that Petitioner admitted to threatening to blow 

up the bank where the victim worked. The Michigan Court of Appeals rejected Petitioner’s 

claim, in part, by ruling that even if counsel was somehow deficient, any such error was harmless 

because two other witnesses, an acquaintance and a police detective, testified that Petitioner had 

threatened to blow up the bank. People v. Jones, No. 308293, 2013 WL 5630075, at *10. 

 A reviewing court “need not determine whether counsel’s performance was deficient ... 

[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice 

....”. Strickland, 466 U.S. at 697. Thus, if an alleged error by counsel was not prejudicial, a 

federal court need not determine whether counsel’s performance was constitutionally deficient. 

See McMeans v. Brigano, 228 F. 3d 674, 686 (6th Cir. 2000) (citing to Strickland, 466 U.S. at 

697). In light of the fact that two other witnesses testified that Petitioner threatened to blow up 

the bank, any possible deficiency by counsel in failing to correct the defense expert’s mistaken 

recollection that Petitioner told him he threatened to blow up the bank did not prejudice 

Petitioner. 

IV 

 Before Petitioner may appeal this Court’s dispositive decision, a certificate of 

appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R.App. P. 22(b). 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). When a court rejects a habeas claim on the merits, 

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the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists 

would find the district court’s assessment of the constitutional claim debatable or wrong. See 

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by 

demonstrating that . . . jurists could conclude the issues presented are adequate to deserve 

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In 

applying that standard, a district court may not conduct a full merits review, but must limit its 

examination to a threshold inquiry into the underlying merit of the petitioner’s claims. Id. at 

336-37. “The district court must issue or deny a certificate of appealability when it enters a final 

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

2254. 

 Having considered the matter, the Court concludes that Petitioner has failed to make a 

substantial showing of the denial of a constitutional right. Accordingly, a certificate of 

appealability is not warranted in this case. The Court further concludes that Petitioner should not 

be granted leave to proceed in forma pauperis on appeal, as any appeal would be frivolous. See

Fed.R.App. P. 24(a). 

V 

 Accordingly, it is ORDERED that Jones’s petition for habeas corpus (ECF No. 1) is 

DENIED. 

 It is further ORDERED that a certificate of appealability is DENIED.

 It is further ORDERED that leave to appeal in forma pauperis is DENIED.

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: September 14, 2015 

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PROOF OF SERVICE 

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

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

class U.S. mail on September 14, 2015. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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