UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARNELL ELLSWORTH HAYES,

Petitioner,

v. Civil Case No. 15-10081

Honorable Linda V. Parker

SHERRY BURT, 

Respondent.

__________________________________/

OPINION AND ORDER DENYING THE MOTION FOR DISCOVERY 

(ECF NO. 9), DENYING THE HABEAS CORPUS PETITION (ECF NO. 1), 

GRANTING IN PART A CERTIFICATE OF APPEALABILITY, AND 

GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

This matter is before the Court on Petitioner Darnell Ellsworth Hayes’ pro se

motion for discovery and petition for the writ of habeas corpus under 28 U.S.C. 

§ 2254. Petitioner is challenging his convictions under Michigan law for firstdegree (felony) murder, assault with intent to commit murder, conspiracy to 

commit armed robbery, felon in possession of a firearm, and possession of a 

firearm during the commission, or attempt to commit, a felony. As grounds for 

relief, Petitioner alleges that: (1) the exclusion of the public for a key portion of 

his trial violated his constitutional right to a public trial; (2) defense counsel was 

ineffective for failing to object to the closure of the courtroom; (3) the trial court 

deprived him of a fair trial by permitting testimony that a key witness was reluctant 
2

to testify due to intimidation by a gang and unspecified threats; (4) the admission 

of testimony regarding his “mug shot” and arrest for an unrelated charge of 

disorderly conduct violated his right to a fair trial; (5) the felony information failed 

to comport with the notice requirements for felony murder; (6) prosecutorial 

misconduct deprived him of due process; and (7) trial counsel’s failure to make 

objections, request a cautionary jury instruction, and move for a mistrial deprived 

him of effective assistance. 

In an answer to the petition filed through counsel, Respondent argues that 

Petitioner is not entitled to discovery, he procedurally defaulted four of his seven 

habeas claims, and the state courts’ rejection of Petitioner’s claims did not result in 

decisions that were contrary to federal law, unreasonable applications of federal 

law, or unreasonable determinations of the facts. The Court agrees that Petitioner 

is not entitled to discovery and that habeas relief is not warranted on any of 

Petitioner’s claims. Accordingly, the Court is denying Petitioner habeas corpus 

relief and his motion for discovery. 

II. BACKGROUND

Petitioner was charged in the Circuit Court for Wayne County, Michigan,

with felony murder, premeditated murder, assault with intent to commit murder, 

conspiracy to commit armed robbery, felon in possession, and felony firearm. The 
3

charges arose from the shooting of Philden Reid (“Reid”) and Brian Tilles1

(“Tilles”) in Detroit, Michigan, on May 8, 2009. Reid died from his gunshot 

wounds, but Tilles survived and was the main witness at Petitioner’s trial. 

Petitioner and his two co-defendants (Derrico Searcy and Delmerey Morris) were 

tried before a single jury in Wayne County Circuit Court where 

[t]he prosecution’s theory . . . was that Reid was shot 

during the defendants’ planned attempt to rob him of his 

expensive designer sunglasses and money. The 

prosecution’s principal witness, [Tilles], was with the 

defendants during the offense. According to [Tilles], the 

group of neighborhood friends, which also included Rob 

Stringer, was outside talking when Reid drove by 

wearing the sunglasses and flashing money. Upon 

observing Reid, defendant Hayes remarked, “There go a 

lick,” identifying Reid as an easy robbery victim. About 

five minutes later, the five men got into defendant 

Searcy’s Jeep and observed Reid’s vehicle at a nearby 

intersection. Defendant Hayes stated, “There go the 

lick,” and told defendant Morris, who was seated behind 

defendant Hayes, to give him a firearm that defendant 

Morris had in his pocket. While still seated in the Jeep, 

which was next to Reid’s vehicle, defendant Hayes 

opened the passenger door and fired several shots toward 

Reid’s vehicle, then stepped out of the Jeep and 

continued shooting. In the meantime, [Tilles] and 

Stringer fled from the backseat of the Jeep and, while 

running, [Tilles] was accidentally shot by defendant 

 

1 At Petitioner’s preliminary examination, Tilles spelled his last name when asked. 

(8/12/11 Tr. at 6, ECF No. 6-2 at Pg ID 183.) At subsequent proceedings, he was 

not asked to spell his last name and it is spelled throughout the transcripts as 

“Tillis.” (See 10/13/11 Trial Tr. at 3, Pg ID 582.) The Court is using the spelling 

he provided.
4

Hayes. Defendant Morris and Stringer carried [Tilles] to 

the Jeep, defendant Hayes reentered the vehicle, and 

defendant Searcy drove the men away from the scene. 

Reid received two gunshot wounds, one to the back and 

one to the thigh, and died at the scene. The defense 

theory for all three defendants was that they were not 

involved in Reid’s death or an attempted robbery, and 

that [Tilles] was not a credible witness.

People v. Hayes, No. 308527, 2014 WL 1267264, at *1 (Mich. Ct. App. Mar. 27, 

2014).

On October 24, 2011, the jury found Petitioner guilty of felony murder, 

second-degree murder (as a lesser-included offense of premeditated murder), 

assault with intent to commit murder, conspiracy to commit armed robbery, felon 

in possession, and felony firearm. The trial court sentenced Petitioner to two years 

in prison for the felony-firearm conviction, followed by concurrent terms of life 

imprisonment for the murder convictions, thirty to sixty years in prison for the 

assault and conspiracy convictions, and forty to sixty months in prison for the 

felon-in-possession conviction. 

Petitioner raised his habeas claims in an appeal as of right. The Michigan 

Court of Appeals vacated Petitioner’s conviction and sentence for second-degree 

murder and remanded Petitioner’s case to the trial court to correct a clerical error 

in his judgment of sentence. The Court of Appeals affirmed Petitioner’s 

convictions and sentence in all other respects. See id. Petitioner appealed to the 
5

Michigan Supreme Court, but the State Supreme Court denied leave to appeal 

because it was not persuaded to review the issues. See People v. Hayes, 849 

N.W.2d 380 (Mich. 2014). On January 8, 2015, Petitioner filed his pending federal 

habeas corpus petition.

III. PRELIMINARY MATTERS

A. Procedural default

Respondent argues in her answer to the petition that Petitioner procedurally 

defaulted his first, fourth, fifth, and sixth grounds for habeas relief by failing to 

object to the claimed errors at trial. To obtain habeas relief on procedurally 

defaulted claims, a petitioner must establish “cause” for the defaults and “also 

show that the claims are meritorious.” Babick v. Berghuis, 620 F.3d 571, 576 (6th 

Cir. 2010). Petitioner argued in a motion to amend, which the Court granted (see

ECF Nos. 7 and 8), that his trial attorney was “cause” for his failure to object at 

trial. Petitioner also raises independent claims of ineffective assistance of counsel 

in his habeas petition.

The Court finds it more efficient to address the merits of Petitioner’s claims 

than to analyze whether the claims are procedurally defaulted. Accordingly, the 

Court excuses the alleged procedural defaults and “cut[s] to the merits here,” as 

“the cause-and-prejudice analysis adds nothing but complexity to the case.” Id. 
6

B. Petitioner’s motion for discovery

In his motion for discovery, filed March 21, 2017, Petitioner alleges that 

“new developments” suggest Tilles fabricated his testimony and that detectives had 

specific information concerning this fabrication. Petitioner claims the new 

developments show there was a miscarriage of justice in his case and that the 

prosecutor presented false evidence in violation of Giglio v. United States, 405 

U.S. 150 (1972), and withheld favorable evidence in violation of Brady v. 

Maryland, 373 U.S. 83 (1963). To prove his claims, Petitioner seeks a copy of the 

Detroit Police Department’s homicide file and the Wayne County prosecutor’s 

office file. Respondent opposes any request by Petitioner for discovery. (See

Answer in Opp’n to Pet. for Writ of Habeas Corpus at 66-67, ECF No. 5 at Pg ID 

158-59.) 

“[H]abeas actions are civil cases.” Rumsfeld v. Padilla, 542 U.S. 426, 452 

(2004) (Kennedy, J., concurring). However, habeas petitioners, unlike the usual 

civil litigants in federal court, are not entitled to discovery as a matter of course. 

Bracy v. Gramley, 520 U.S. 899, 904 (1997). Although Rule 6(a) of the Rules 

Governing § 2254 Proceedings provides that “[a] judge may, for good cause, 

authorize a party to conduct discovery under the Federal Rules of Civil 

Procedures,” this rule “makes it clear that the scope and extent of such discovery is 
7

a matter confided to the discretion of the District Court.” Bracy, 520 U.S. at 909. 

Discovery is appropriate only when “specific allegations before the court show 

reason to believe that the petitioner may, if the facts are fully developed, be able to 

demonstrate that he is . . . entitled to relief.” Id. at 908-09 (quoting Harris v. 

Nelson, 394 U.S. 286, 300 (1969)). “‘Conclusory allegations are not enough to 

warrant discovery under [Rule 6]; the petitioner must set forth specific allegations 

of fact.’” Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004) (quoting Ward v. 

Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994)).

The primary issue at Petitioner’s trial was whether Tilles was a credible 

witness. The parties addressed Tilles’ credibility during voir dire, in their opening 

statements, during the prosecution’s case in chief, when cross-examining Tilles, 

and in their closing arguments. To support their respective positions, the 

prosecution admitted evidence to show that Tilles’ testimony was corroborated, 

and defense counsel cross-examined Tilles about inconsistencies in his testimony. 

Tilles’ criminal history was made known to the jury, and defense counsel 

suggested that Tilles was a liar, a sheep in wolves’ clothing, and perhaps the 

person who shot Reid. In short, “the issue of [Tilles’] credibility, including his 

motivation for testifying and the existence of other possible influences on his 
8

testimony, was explored at length by all three defendants.” Hayes, 2014 WL 

1267264, at *8.

Furthermore, before trial, the prosecutor provided the defense attorneys 

4,000 minutes of audiotaped conversations between Tilles and the officer in charge 

of the case while Tilles was in jail or in prison. The purpose of reviewing the 

tapes was to determine whether Tilles was promised anything for his cooperation 

in the case and whether the prosecution was withholding evidence of promises 

made to Tilles. (10/6/11 Hr’g Tr. at 5-11, ECF No. 6-4 at Pg ID 251-57.) 

Petitioner and his co-defendants also were given the name of Tilles’ aunt who 

supposedly described Tilles as a liar. (Id. at 11-12, Pg ID 256-57.) It therefore 

appears that Petitioner had ample opportunity to conduct discovery before trial

regarding the motivations behind and credibility of Tilles’ testimony. 

Although Petitioner now maintains that detectives knew Tilles was 

fabricating his testimony, Petitioner has not revealed the source of this information, 

except to say that family members continue to investigate his case. Further, 

because Tilles’ credibility was attacked thoroughly at trial, Petitioner fails to 

demonstrate that the facts, if more fully developed, would entitle him to relief. He 

has not shown good cause for discovery. The Court therefore is denying 
9

Petitioner’s motion for discovery (ECF No. 9) and is proceeding to address his 

habeas claims, using the following standard of review. 

IV. STANDARD OF REVIEW

“The statutory authority of federal courts to issue habeas corpus relief for 

persons in state custody is provided by 28 U.S.C. § 2254, as amended by the 

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. 

Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the court may not grant a 

state prisoner’s application for the writ of habeas corpus unless the state court’s 

adjudication of the prisoner’s claims on the merits 

(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. 

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 
10

rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that statecourt 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.” Richter, 562 U.S. at 101 (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. 

Furthermore, a state court’s determination of a factual issue is presumed to 

be correct unless the petitioner rebuts the presumption of correctness with clear 

and convincing evidence. 28 U.S.C. § 2254(e)(1); Holland v. Rivard, 800 F.3d 

224, 242 (6th Cir. 2015), cert. denied, 136 S. Ct. 1384 (2016). In addition, “review 

under § 2254(d)(1) is limited to the record that was before the state court that 

adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 

(2011).
11

V. ANALYSIS

A. Whether Petitioner was denied the right to a public trial

In his first ground for habeas relief, Petitioner alleges that the exclusion of 

the general public from his trial while Tilles testified violated Petitioner’s 

constitutional right to a public trial. The prosecutor moved to close the courtroom 

during Tilles’ testimony because one or more people had threatened Tilles while he 

was incarcerated. Petitioner contends that the request was inappropriate because 

the prosecutor failed to show that he (Petitioner) or any of the spectators had 

threatened Tilles. 

Petitioner blames the trial court for failing to (1) inquire into the potential 

intimidation and threats, (2) apply the four-part test set forth in Waller v. Georgia, 

467 U.S. 39 (1984), (3) consider any alternatives to closing the courtroom, and (4) 

make any factual findings. The Michigan Court of Appeals reviewed Petitioner’s 

claim for “plain error affecting [Petitioner’s] substantial rights” because Petitioner 

did not preserve his claim for appellate review by objecting to the partial closure 

during trial. Counsel for one of his co-defendants objected, however.

The Michigan Court of Appeals concluded that there was no merit to 

Petitioner’s claim, finding first that the trial judge only partially closed the trial 

because the defendants’ parents were allowed to remain in the courtroom during 
12

Tilles’ testimony. Hayes, 2014 WL 1267264, at *6. The appellate court then 

reasoned:

The record establishes a substantial reason for the partial 

courtroom closure, namely the avoidance of witness 

intimidation, and that the closure did not unnecessarily 

interfere with defendant Hayes’s right to a public trial. 

The nature of the offenses involved a group of friends 

who participated in a murder during an attempted 

robbery. [Tilles] was with the defendants at the time of 

the crimes and decided to testify against them after they 

were no longer on good terms. Before [Tilles] testified, 

the prosecutor asked the trial court to exclude the public 

from the courtroom. The prosecutor explained that 

[Tilles], the prosecution’s chief witness, had been 

threatened after he started testifying in these cases, and 

that he had to be moved from several different prisons 

because of the threats. The prosecutor argued that this 

history demonstrated a likelihood that [Tilles] could be 

inhibited when testifying in open court if the defendants’ 

parents, family, and friends were present in the 

courtroom.

Id. For the reasons that follow, the state court’s decision was neither contrary nor 

an unreasonable application of clearly established federal law, and it was not based 

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

1. Applicable Law

The Sixth Amendment to the United States Constitution guarantees that a 

criminal defendant, “shall enjoy the right to a . . . public trial.” U.S. Const. amend. 

VI. This right is made applicable to the States through the Fourteenth 
13

Amendment. Presley v. Georgia, 558 U.S. 209, 212 (2010) (citing In re Oliver, 

333 U.S. 257 (1948)). “The requirement of a public trial is for the benefit of the 

accused; that the public may see he is fairly dealt with and not unjustly 

condemned, and that the presence of interested spectators may keep his triers 

keenly alive to a sense of their responsibility and to the importance of their 

functions.” In re Oliver, 333 U.S. at 270 n.25 (quotation marks and citation 

omitted). “In addition to ensuring that judge and prosecutor carry out their duties 

responsibly, a public trial encourages witnesses to come forward and discourages 

perjury.” Waller, 467 U.S. at 46. 

In Waller, the Supreme Court held that the complete closure of the 

courtroom to members of the public during a pretrial hearing violated the 

defendant’s Sixth Amendment right to a public proceeding. The Waller Court 

identified four factors a court must consider, and findings a court must make, 

before excluding members of the public from the courtroom: (i)”the party seeking 

to close the hearing must advance an overriding interest that is likely to be 

prejudiced.” (ii) “the closure must be no broader than necessary to protect that 

interest,” (iii) “the trial court must consider reasonable alternatives to closing the 

proceeding,” and (iv) “it must make findings adequate to support the closure.” Id. 

at 48.
14

Subsequently in Presley, the Supreme Court reaffirmed that a trial court 

must make the required findings under Waller before excluding members of the 

public from the jury selection proceeding in a criminal trial. The Court held that 

the trial court violated the defendant’s Sixth Amendment right to a public 

proceeding when it failed to consider alternatives to the removal of the single 

member of the public in attendance before bringing the jury venire into the 

courtroom. Id. at 214-15.

Waller and Presley concerned a full, rather than partial, closure of the 

courtroom to the public. In Waller, “the court ordered [a] suppression hearing 

closed to all persons other than witnesses, court personnel, the parties, and the 

lawyers.” 467 U.S. at 42. In Presley, the trial court told a lone courtroom observer 

during jury selection that he was not allowed in the courtroom during the 

proceedings. 558 U.S. at 210. The Sixth Circuit has held that Supreme Court 

caselaw therefore does not clearly establish whether and how Waller’s 

requirements apply when the proceedings are only partially closed. Drummond v. 

Houk, 797 F.3d 400, 403 (6th Cir. 2015). The court explained:

What was not obvious at the time of the Ohio Supreme 

Court’s decision, however—and thus not clearly 

established for purposes of the habeas statute—is 

whether and how these more specific rules apply in 

cases, like this one, where some spectators but not all are 

removed from the courtroom. The Supreme Court’s 
15

caselaw does not clearly establish, for example, whether 

in such cases the trial court must identify an “overriding” 

interest favoring closure, as in Waller, or instead only a 

“substantial” interest, as some circuit courts have 

inferred, or perhaps even some lesser interest. Likewise 

unclear—and thus not clearly established—is whether the 

closure must be “narrowly tailored ... as the Court 

required in Waller, or whether in partial-closure cases a 

somewhat looser cut will do. And on the procedural side, 

Waller says the court must make “findings adequate to 

support the closure.” ... But “adequate” is a vague and 

therefore elastic term; and for all the Ohio courts knew 

here, “adequate” might mean one thing in full-closure 

cases, and a different and less rigorous thing when the 

closure is only partial.

Id.

2

 As the Sixth Circuit noted in another decision, “[n]early all federal courts of 

appeals ... have distinguished between the total closure of proceedings and 

situations in which a courtroom is only partially closed to certain spectators.” 

United States v. Simmons, 797 F.3d 409, 413 (6th Cir. 2015).

The Drummond court found that “‘there are reasonable arguments,’ ... that 

Waller does not apply to partial-closure cases in the wholesale manner that [the 

habeas petitioner] says it does.” 797 F.3d at 404 (quoting White v. Woodall, 134 S. 

 

2 As the Drummond court provided, a full closure “mean[s] a closure where the 

entire public, including the media, is excluded from the courtroom.” 467 U.S. at 

402. “‘Whether a closure is total or partial depends not on how long a trial is 

closed, but rather who is excluded during the period of time in question.’” United 

States v. Simmons, 797 F.3d 409, 413 (6th Cir. 2015) (quoting United States v. 

Thompson, 713 F.3d 388, 395 (8th Cir. 2013)) (ellipsis removed).
16

Ct. 1697, 1704 (2014)). According to the court, “[t]he only principle from Waller

that was clearly established for purposes of the partial closure here was the general 

one that the trial court must balance the interests favoring closure against those 

opposing it.” Id. Finding that the state court “applied that principle” and “did so 

reasonably, in the capacious sense of ‘reasonable’ as used for purposes of the 

habeas statute[,]” the Sixth Circuit concluded that the petitioner was not entitled to 

habeas relief on his public trial claim. Id.

2. Application

The Michigan Court of Appeals characterized the closure in Petitioner’s case 

as a partial one. Hayes, 2014 WL 1267264, at 6. The trial record substantiates this 

determination. (See 10/13/11 Trial Tr. at 9-14.) The trial judge allowed the 

defendants’ parents to remain in the courtroom during Tilles’ testimony, despite 

asking everyone else to leave. (Id. at 14.) Because the closure was partial, 

Petitioner’s public trial claim cannot be based on clearly established Supreme 

Court law. Drummond, 797 F.3d at 403.

To the extent Waller’s general rule applies regardless of the form of 

closure—that “a trial court must balance the interests for and against closure, 467 

U.S. at 45—this Court finds that the Michigan courts followed that rule. As the 

Michigan Court of Appeals recited, the trial court balanced the defendants’ right to 
17

a public trial against the need to avoid witness intimidation and to protect the 

integrity of the judicial system. Hayes, 2014 WL 1267264. The prosecutor 

represented to the trial judge that the Michigan Department of Corrections

repeatedly moved Tilles due to threats made against him while he was 

incarcerated. (10/13/11 Trial Tr. at 9, ECF No. 6-7 at Pg ID 588; 10/6/11 Hr’g Tr. 

at 9, ECF No. 6-4 at Pg ID 255.) The prosecutor also informed the trial judge that 

after Tilles came forward in the case, his brother was murdered in a way to suggest 

that it was designed to send a message to Tilles to shut his mouth. (10/6/11 Hr’g 

Tr. at 9, ECF No. 6-4 at Pg ID 255.)

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

habeas relief based on his public trial claim.

B. Whether Petitioner was denied the effective assistance of counsel 

based on counsel’s failure to object to the closure of the

courtroom

In a related claim, Petitioner asserts that his trial attorney was ineffective for 

failing to object to the closure of the courtroom and for failing to mention the 

Supreme Court’s decision in Waller. Petitioner argues that his counsel should have 

asked the trial court to make a factual record establishing some connection 

between the alleged intimidation and the people in the audience. The Michigan 

Court of Appeals determined that defense counsel’s failure to challenge the partial 
18

closure was not objectively unreasonable and that Petitioner failed to establish 

ineffective assistance of counsel. 

1. Clearly Established Federal Law

The “clearly established Federal law” for claims of ineffective assistance of 

counsel is Strickland v. Washington, 466 U.S. 668 (1984). Pinholster, 563 U.S. at 

189. Under Strickland, a defendant must show “that counsel’s performance was 

deficient” and “that the deficient performance prejudiced the defense.” Strickland, 

466 U.S. at 687. “Unless a defendant makes both showings, it cannot be said that 

the conviction . . . resulted from a breakdown in the adversary process that renders 

the result unreliable.” Id. 

The “deficient performance” prong of the Strickland test requires the 

defendant to show “that counsel’s representation fell below an objective standard 

of reasonableness.” Id. at 688. The defendant must demonstrate “that counsel 

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed 

the defendant by the Sixth Amendment.” Id. at 687. 

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. A defendant must demonstrate “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Id. 
19

at 694. Although prejudice is presumed when a defendant’s public trial rights are 

violated, it is not presumed in an ineffective assistance of counsel claim related to 

the violation:

[W]hen a defendant raises a public-trial violation via an 

ineffective-assistance-of-counsel claim, Strickland

prejudice is not shown automatically. Instead, the burden 

is on the defendant to show either a reasonable 

probability of a different outcome in his or her case or ...

to show that the particular public-trial violation was so 

serious as to render his or her trial fundamentally unfair.

Weaver v. Massachusetts, __ U.S. __, 137 S. Ct. 1899, 1911 (2017).

In the habeas context, review of an ineffective-assistance-of-counsel claim 

“is doubly deferential[.]” Cullen v. Pinholster, 563 U.S. 170, 190 (2011). A 

federal habeas court must afford “both the state court and the defense attorney the 

benefit of the doubt.” Burt v. Titlow, __ U.S. __, 134 S. Ct. 10, 13 (2013). The 

question becomes “not whether counsel’s actions were reasonable,” but “whether 

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

standard.” Harrington, 562 U.S. at 105.

2. Application

The Court begins its analysis by noting that counsel for one of the 

defendants did object to the closure of the proceedings during Tilles’ testimony, 

and the trial court overruled the objection. Thus, there is not a reasonable 
20

probability that the outcome of Petitioner’s trial would have been different if 

counsel for Petitioner had objected or joined in the other attorney’s objection to the 

prosecutor’s request to close the courtroom. Moreover, as discussed above, 

because the trial judge only partially closed the proceedings, there was no basis for 

Petitioner’s counsel to argue that the court had to adhere to Waller’s requirements. 

For the same reason, the trial judge was not required to make a factual record 

establishing a connection between the threats against Tilles and the individuals in 

the audience who were removed from the courtroom.

Furthermore, Petitioner has not shown a reasonable probability that the 

result of the trial would have been different if his attorney had successfully 

objected to the partial closure of the courtroom and the trial court had allowed 

everyone present in the courtroom—not only the defendants’ parents—to remain 

during Tilles’ testimony. Nor has Petitioner shown that his trial was rendered 

fundamentally unfair by the partial closure.

The Court therefore holds that Petitioner is not entitled to habeas relief based 

on this ineffective assistance of counsel claim. 

C. Whether the introduction of evidence that Tilles was reluctant to

testify due to threats violated Petitioner’s right to a fair trial

In his third ground for relief, Petitioner claims he was deprived of a fair trial 

when the trial judge permitted Tilles to testify that he was the victim of gang 
21

intimidation and was threatened after he became a witness for the prosecution.3 

Petitioner states that this testimony was “outcome-determinative” because Tilles

was the sole witness to inculpate him. (Br. in Supp. of Pet. at 25, ECF No. 1 at Pg 

ID 31.)

The Michigan Court of Appeals rejected Petitioner’s claim related to 

testimony about gang intimidation because it found no evidence in the record 

relating to a gang. Hayes, 2014 WL 1267264, at *7. On appeal, Petitioner did not 

identify any portion of the record where evidence of his gang membership or 

evidence that a gang was the source of any intimidation aimed at Tilles was 

presented to the jury. Id. As the Michigan Court of Appeals explained, “although 

defendant Hayes was alleged to be a member of the Hustle Boys gang, there was 

no evidence that the charged offense was gang related and, accordingly, the trial 

court prohibited any references to gang membership at trial.” Id. As for the 

unspecified threats against Tilles, the court of appeals concluded that the evidence 

was erroneously admitted, but that the error was harmless. 

 

3 Petitioner refers to “gang intimidation” in the title of this claim; however, he does 

not discuss evidence of gang intimidation in his argument in support of this claim. 

As discussed infra, the Michigan Court of Appeals found no evidence in the record 

related to a gang. Hayes, 2014 WL 1267264, at *7. Petitioner does not argue here 

that this finding was incorrect.
22

1. Clearly Established Federal Law

Errors in the application of state law, especially rulings on the admission or 

exclusion of evidence, usually are not questioned in a habeas corpus proceeding, 

Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988), because “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). A state trial court’s 

evidentiary error does not rise to the level of a federal constitutional claim 

warranting habeas corpus relief “unless the error render[ed] the proceeding so 

fundamentally unfair as to deprive the petitioner of due process under the 

Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) 

(citing McGuire, 502 U.S. at 69-70). 

2. Application

In the jury’s absence, the prosecutor sought prior permission from the trial 

court to elicit testimony that Tilles was transferred from prison to prison due to 

threats and that he remained a willing witness despite the threats. (10/13/11 Trial 

Tr. at 140-45, ECF No. 6-7 at Pg ID 720-25.) The prosecutor maintained that the 

jury needed to understand Tilles was receiving threats because he was “snitching.” 
23

(Id.) The prosecutor also claimed that the evidence was relevant to Tilles’

credibility. (Id.) Petitioner’s attorney objected to the proposed testimony on the 

basis that the threats were not attributed to the defendants. (Id.) The trial court 

nevertheless ruled that the prosecutor could elicit the testimony. (Id.) 

The prosecutor subsequently asked Tilles whether he had been moved while 

he was incarcerated. (Id. at 149, Pg ID 728.) Tilles answered that he had been 

transferred to different prisons four or five times due to threats related to his 

testifying. (Id. at 149, 151, Pg ID 728, 730.) Tilles stated that, at one point, he 

was housed with one of Petitioner’s relatives and had to be moved from the prison. 

(Id. at 152, Pg ID 731.) Tilles testified that he was still concerned for his safety. 

(Id.)

The Michigan Court of Appeals correctly observed on review of Petitioner’s 

claim that there was no evidence introduced to the jury about a gang or that the 

threats against Tilles were gang related. Therefore, the only question is whether 

Tilles’ testimony about unspecified threats against him deprived Petitioner of due 

process and a fair trial. The Michigan Court of Appeals determined that the trial 

court should not have allowed Tilles’ testimony about unspecified threats because 

it did not serve any of the purposes for which such testimony is allowed under 
24

Michigan law. Hayes, 2014 WL 1267264, at *7. Nevertheless, the court found the 

error harmless. Id. at *8.

On habeas review, an issue is harmless unless it had a “substantial and 

injurious effect or influence in determining the jury’s verdict.” Brecht v. 

Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 

U.S. 750, 776 (1946)). A habeas court must assess the impact of trial error under 

Brecht’s standard regardless of whether “the state appellate court recognized the 

error and reviewed it for harmlessness under the ‘harmless beyond a reasonable 

doubt’ standard set forth in Chapman [v. California, 386 U.S. 18 (1967)].” Fry v. 

Pliler, 551 U.S. 112, 121-22 (2007). “When a federal judge in a habeas 

proceeding is in grave doubt about whether a trial error of federal law had 

‘substantial and injurious effect or influence in determining the jury’s verdict,’ that 

error is not harmless. And, the petitioner must win.” O’Neal v. McAninch, 513 

U.S. 432, 436 (1995). 

Here, Tilles testified that he had been threatened in prison due to his 

testimony against the defendants, but he did not say that Petitioner or Petitioner’s

co-defendants threatened him. Although Tilles did say that he was moved to a 

different prison after he was housed with one of Petitioner’s relatives (10/13/11 

Trial Tr. at 152), once again, he did not say that Petitioner was behind the threats 
25

or even that Petitioner’s relative had threatened him. The implication may have 

been that Petitioner’s relative threatened Tilles, but there was no evidence that 

Petitioner was involved. As such, this did not amount to evidence of Petitioner’s

other bad acts, as he argues. Moreover, other evidence was introduced to show 

that, before the threats were made, Tilles did not feel safe after he implicated the 

defendants in the shooting. (See id. at 123, Pg ID 702; 10/17/11 Trial Tr. at 91, 

ECF No. 6-8 at Pg ID 895.)

For these reasons, the Michigan Court of Appeals properly concluded that 

the evidence was harmless. It is unlikely that Tilles’ testimony about being 

threatened had a substantial and injurious effect or influence on the jury’s verdict. 

D. Whether Petitioner was denied a fair trial due to the admission of

evidence concerning his mug shot and an unrelated charge

In his fourth ground for relief, Petitioner claims that testimony about his 

mug shot and an unrelated arrest for disorderly conduct deprived him of due 

process and a fair trial. The charge of disorderly conduct was based on Petitioner 

being intoxicated and sleeping outside on a bench in a recreation area in Westland, 

Michigan. (10/18/11 Trial Tr. at 142-44, ECF No. 6-9 at Pg ID 1105-07.) 

Petitioner contends that his arrest on the disorderly conduct charge and evidence of 

the mug shot were irrelevant and inadmissible for the following reasons: (1) there 

was no need to attempt to impeach him, as he did not testify; (2) the arrest was not 
26

the equivalent of a conviction; and (3) the probative value of the evidence was 

substantially outweighed by the danger of unfair prejudice. 

The Michigan Court of Appeals reviewed Petitioner’s claim for “plain error” 

because he did not preserve the issue by objecting to the testimony at trial. Hayes, 

2014 WL 1267264, at *9. The court then concluded that there was no plain error 

because the evidence was necessary to explain how the arresting officer discovered 

Petitioner’s identity after Petitioner gave a false name and the fact that there was 

an outstanding homicide warrant for Petitioner related to the conduct for which he 

was on trial. Id. at *8-9. The court found Petitioner’s use of a false name relevant 

to his consciousness of guilt. Id. at *9.

As previously explained, errors in the application of state law, especially 

rulings on the admission or exclusion of evidence, generally are not cognizable on 

habeas corpus review. Cooper, 837 F.2d at 286. A state trial court’s evidentiary 

error rises to the level of a federal constitutional claim warranting habeas corpus 

relief only if the error rendered the proceeding so fundamentally unfair as to 

deprive the petitioner of due process. McAdoo, 365 F.3d at 494.

For the following reasons, it was not fundamentally unfair to elicit testimony 

about Petitioner’s mug shot and arrest for disorderly conduct. First, the disputed 

evidence explained how Petitioner happened to be found, arrested, and identified 
27

more than two years after the fatal shooting of Reid. (10/18/11 Trial Tr. at 140-46,

ECF No. 6-9 at Pg ID 1102-08.) Evidence of other acts is admissible to provide

background information and where the other acts are inextricably intertwined with 

the charged offense or the evidence is necessary to complete the story on the 

charged offense. United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000). 

Here, the evidence was necessary to complete the story on the charged offenses.

Second, the reference to the mug shot was fleeting, and even though the 

primary inadmissible evidence conveyed by a mug shot is that the individual was 

previously arrested, Matthews v. Abramajtys, 319 F.3d 780, 789 (6th Cir. 2003), 

the arresting officer did not provide any details about Petitioner’s criminal history. 

Third, Petitioner’s attorney stipulated, for purposes of the felon-inpossession charge, that Petitioner had a prior felony conviction. (10/20/11 Trial 

Tr. at 73; ECF No. 6-11 at Pg ID 1350.) The mug shot evidence was “basically 

inconsequential,” given that evidence of a prior conviction was previously made 

known to the jurors in a proper manner. Matthews, 319 F.3d at 789. 

 Finally, there is not a substantial probability that testimony about the mug 

shot and arrest for disorderly conduct had a substantial and injurious effect on the 

jury’s verdict. In the state appellate court’s words, “there was no reasonable 

likelihood that the jury would use evidence of defendant Hayes’s arrest for a 
28

transitory disorderly conduct offense to conclude that he must be guilty of the 

dissimilar and much more serious charged offenses, including murder.” Hayes, 

2014 WL 1267264, at *9 (emphasis omitted). 

The evidence was introduced for a proper reason, and any error in 

introducing the evidence was harmless. Therefore, Petitioner is not entitled to 

relief based on his claim about the mug shot and his arrest for disorderly conduct.

E. Whether Petitioner was denied notice of the “intent to kill”

element

In his fifth ground for relief, Petitioner claims he was denied his 

constitutional right to notice of the charges against him. Petitioner contends that 

he was not adequately informed of the “intent to kill” element of felony murder 

until the end of the trial when the trial court instructed the jury on the elements of 

the charge.

4 Petitioner points out that the “intent” element of the charge was not set 

forth in the criminal information (charging document) or in the statute.

The Michigan Court of Appeals reviewed this claim for “plain error” 

because Petitioner did not object to the information, nor raise the issue at trial. 

 

4 The jury instruction on felony-murder stated that the second element of the crime 

was the intent to kill, the intent to do great bodily harm, or the intent to create a 

high risk of death or great bodily harm, knowing that death or such harm would be 

the likely result. (10/21/11 Trial Tr. at 51; ECF No. 6-12 at Pg ID 1497.)
29

Hayes, 2014 WL 1267264, at *10. The court concluded that the claim lacked 

merit, finding that “[t]he information, coupled with the preliminary examination, 

was constitutionally sufficient to place defendant Hayes on notice of the charges 

against him.” Id. The court pointed out that Hayes also was charged with firstdegree premeditated murder, for which the information specifically alleged that he 

acted “with the intent to kill[.]” Id. Further, the prosecutor argued at the 

preliminary examination that the fact “Hayes shot a gun multiple times toward 

Reid’s vehicle established that he had the ‘clear’ intent to kill.” Id.

1. Clearly Established Federal Law

The Sixth Amendment to the United States Constitution provides that, “[i]n 

all criminal prosecutions, the accused shall enjoy the right . . . to be informed of 

the nature and cause of the accusation.” U.S. Const., amend. VI. The Sixth Circuit 

has explained this right, as applied to the States through the Fourteenth 

Amendment, as follows:

The due process clause of the Fourteenth Amendment 

mandates that whatever charging method the state 

employs must give the criminal defendant fair notice of 

the charges against him to permit adequate preparation of 

his defense. In Re Ruffalo, 390 U.S. 544, 88 S. Ct. 1222, 

20 L.Ed.2d 117 (1968); Blake v. Morford, 563 F.2d 248 

(6th Cir. 1977); Watson v. Jago, 558 F.2d 330, 338 (6th 

Cir. 1977). This requires that the offense be described 

with some precision and certainty so as to apprise the 

accused of the crime with which he stands charged. Such 
30

definiteness and certainty are required as will enable a 

presumptively innocent man to prepare for trial. Combs 

v. Tennessee, 530 F.2d [695, 698 (6th Cir. 1976)].

Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984). 

2. Application

 Petitioner argues that, if he had received adequate notice of the “intent to 

kill” element of felony murder, his trial strategy could have revolved around Tilles’ 

testimony that there was no intent to kill the victim, only an intent to rob. The 

Michigan Court of Appeals noted on review of Petitioner’s claim, however, that in 

addition to felony-murder, Petitioner was charged with premeditated murder, and 

the felony complaint specifically alleged that Petitioner did “‘deliberately, with the 

intent to kill ... murder’ Reid.” Hayes, 2014 WL 1267264, at *10 (emphasis added 

in Hayes); (see also Felony Complaint, ECF No. 1 at Pg ID 83.) Further, as the 

Michigan Court of Appeals pointed out, one of the issues addressed at Petitioner’s 

preliminary examination was whether there was sufficient evidence that he 

possessed the intent to kill. (8/12/11 Hr’g Tr. at 55-59; ECF No. 6-2 at Pg ID 232-

35.) Additionally, during voir dire, the trial court stated that Petitioner was 

charged in count two with “deliberately and with intent to kill and with 

premeditation kill and murder Ms. [sic] Reid.” (10/11/11 Trial Tr. at 19; ECF No. 

6-5 at Pg ID 283.) Furthermore, “‘it may be appropriate to presume that in most 
31

cases defense counsel routinely explain the nature of the offense in sufficient detail 

to give the accused notice of [the offense charged].” Marshall v. Lonberger, 459 

U.S. 422, 436 (1983) (quoting Henderson v. Morgan, 426 U.S. 637, 647 (1976)). 

For these reasons, the Court finds that Petitioner was adequately advised of 

the “intent to kill” element and had an adequate opportunity to defend against the 

charges. Therefore, habeas relief is not warranted on this claim.

F. Whether the prosecutor engaged in misconduct

Petitioner argues in his sixth ground for relief that the prosecutor engaged in 

misconduct by failing to provide adequate notice that she intended to introduce 

testimony about Petitioner’s mug shot and arrest on the unrelated charge of 

disorderly conduct. Petitioner contends that the lack of notice violated Michigan 

Rule of Evidence 404(b)(2) and his fundamental right to due process. The 

Michigan Court of Appeals determined that this claim was not preserved for 

appellate review and that Petitioner had not demonstrated “plain error” affecting 

his substantial rights. Hayes, 2014 WL 1267264, at *10.

1. Clearly Established Federal Law

“Claims of prosecutorial misconduct are reviewed deferentially” in a habeas 

corpus proceeding. Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004). “[T]he 

touchstone of due process analysis in cases of alleged prosecutorial misconduct is 
32

the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 

455 U.S. 209, 219 (1982). The relevant question is whether the prosecutor’s 

conduct infected the trial with such unfairness as to make the resulting conviction a 

denial of due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986). The 

Sixth Circuit recently explained the difficulty of establishing prosecutorial 

misconduct in the habeas context:

Because th[e] standard is “a very general one,” courts 

have considerable leeway in resolving such claims on a 

case-by-case basis. Parker v. Matthews, 567 U.S. 37, 48, 

132 S. Ct. 2148, 183 L.Ed.2d 32 (2012) (per curiam). 

That leeway increases in assessing a state court’s ruling 

under AEDPA. [The federal habeas court] “cannot set 

aside a state court’s conclusion on a federal 

prosecutorial-misconduct claim unless a petitioner cites

... other Supreme Court precedent that shows the state 

court’s determination in a particular factual context was 

unreasonable.” Trimble [v. Bobby, 804 F.3d 767, 783 

(6th Cir. 2015)].

Stewart v. Trierweiler, 867 F.3d 633, 638-39 (6th Cir. 2017).

2. Application

Under Michigan Rule of Evidence 404(b)(2), the prosecution in a criminal 

case must provide reasonable notice of its intent to introduce evidence of other 

crimes, wrongs, or acts. The notice must be provided before trial “or during trial if 

the [trial] court excuses pretrial notice on good cause shown.” Id. 
33

The Michigan Court of Appeals determined on review of Petitioner’s claim 

that Rule 404(b)(2) was not implicated in Petitioner’s case because evidence of 

Petitioner’s mug shot and arrest for disorderly conduct was not offered as evidence 

of other crimes, wrong, or acts. Instead, it was admitted as context for the charged 

crimes and to explain how the police were able to discover that Petitioner had used 

a false name at his arrest. The state court’s interpretation of state law, and Rule 

404(b) in particular, binds this Court sitting in habeas corpus. Bradshaw v. Richey, 

546 U.S. 74, 76 (2005). Even if Rule 404(b)(2) applied to Petitioner’s case, the 

alleged violation of the Michigan Rules of Evidence is not a cognizable claim on 

federal habeas review. Hall v. Vasbinder, 563 F.3d 222, 239 (6th Cir. 2009). 

Moreover, for the reasons discussed in subsection D, the introduction of this 

evidence did not infect the trial with such unfairness as to make the resulting 

conviction a denial of due process. See Darden, supra.

 The Court therefore declines to grant Petitioner relief on this claim. 

G. Whether Petitioner was denied the effective assistance of trial

counsel due to counsel’s failure to object, request a curative jury

instruction, and move for a mistrial

In his seventh and final ground for relief, Petitioner alleges additional claims 

about his trial attorney. He claims that the attorney’s performance was deficient 

because the attorney failed to: (1) object to testimony about Petitioner’s mug shot 
34

and arrest for disorderly conduct; (2) object to the jury instruction on the “intent to 

kill” element of felony murder; (3) request a cautionary jury instruction regarding 

Petitioner’s criminal history; and (4) move for a mistrial when the prosecutor 

introduced testimony regarding Petitioner’s mug shot and arrest for disorderly 

conduct. Petitioner maintains that there is a reasonable probability the result of the 

proceeding would have been different had counsel objected. More specifically, 

Petitioner argues: (1) if counsel objected to the testimony about his mug shot and 

arrest for disorderly conduct, the jury would not have been aware of his criminal 

history; (2) if counsel had objected to the lack of notice on the “intent to kill” 

element, he could have prepared a different defense; (3) if counsel requested a 

curative jury instruction, the jury would have had a comprehensive understanding 

on how to evaluate his criminal history; and (4) if counsel had moved for a 

mistrial, Petitioner would not have been convicted. The Michigan Court of 

Appeals determined that trial counsel was not ineffective. Hayes, 2014 WL 

1267264, at *11.

1. Clearly Established Federal Law

The Court previously outlined in subsection B the applicable standard for 

reviewing ineffective assistance of counsel claims, including the double deference 

afforded counsel’s performance on habeas review.
35

2. Application

For the reasons discussed, Petitioner’s underlying claims about his arrest and 

mug shot and the “intent to kill” element of felony murder lack merit. Therefore, 

Petitioner’s trial counsel was not ineffective for failing to move for a mistrial, for 

failing to object to testimony about Petitioner’s mug shot and his arrest for 

disorderly conduct, or for failing to request a cautionary jury instruction regarding 

Petitioner’s criminal history. Likewise, defense counsel was not ineffective for 

failing to object to the jury instruction on the “intent to kill” element of felony 

murder.

An objection or motion for a mistrial related to Petitioner’s mug shot and 

arrest for disorderly conduct would have been meritless, and “[o]mitting meritless 

arguments is neither professionally unreasonable nor prejudicial.” Coley v. Bagley, 

706 F.3d 741, 752 (6th Cir. 2013). Therefore, the state appellate court’s finding 

that counsel was not ineffective was neither contrary to, nor an unreasonable 

application of, Strickland, and habeas relief is not warranted on Petitioner’s claim.

VI. CONCLUSION, CERTIFICATE OF APPEALABILITY, AND LEAVE 

TO APPEAL IN FORMA PAUPERIS

For the reasons given above, this Court concludes that Petitioner is not 

entitled to habeas relief based on the claims asserted. Before Petitioner may appeal 

the Court’s decision, he must obtain a certificate of appealability. See Miller-El v. 
36

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.

Aside from Petitioner’s claim related to the introduction of evidence about 

threats to Tilles, reasonable jurists could not debate the Court’s assessment of 

Petitioner’s claims, nor conclude that the issues deserve encouragement to proceed 

further. There is no clearly established Supreme Court precedent applicable to the 

partial closure of Petitioner’s trial during Tilles’ testimony. Petitioner fails to show 

that his counsel’s failure to object to the closure prejudiced his defense. The trial 

court properly admitted evidence of Petitioner’s mug shot and disorderly conduct 

charge to establish Petitioner’s consciousness of guilt and because the evidence 

was part of the background of the charges against him. The prosecutor did not 

violate state law in connection with the introduction of this evidence. In any event, 

any violation of Michigan Rule of Evidence 404(b) did not infect Petitioner’s trial 

with such unfairness as to make the resulting conviction a denial of due process.
37

Petitioner was provided notice of the intent to kill element. Finally, Petitioner’s 

ineffective assistance of counsel claim based on the failure to object to the claimed 

errors lacks merit because the underlying claims lack merit.

With respect to evidence that Tilles was threatened, reasonable jurists could 

disagree as to whether the introduction of this evidence had a “substantial and 

injurious effect or influence in determining the jury’s verdict.” The Court 

therefore is granting Petitioner a certificate of appealability with respect to his 

claim that he was denied a fair trial due to the admission of this evidence. For this 

reason, the Court also finds that an appeal could be taken in good faith and is 

granting him leave to proceed in forma pauperis on appeal if he appeals this 

decision.

Accordingly,

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

(ECF No. 1) is DENIED.

IT IS FURTHER ORDERED that Petitioner’s motion for discovery (ECF 

No. 9) is DENIED. 

IT IS FURTHER ORDERED that the Court GRANTS Petitioner a 

certificate of appealability with respect to the following issue, only:
38

Whether Petitioner was deprived a fair trial when the trial 

court admitted testimony that a key witness, Brian Tilles, 

was reluctant to testify due to threats.

Petitioner is DENIED a certificate of appealability with respect his remaining 

claims.

IT IS FURTHER ORDERED that Petitioner may proceed in forma 

pauperis on appeal. 

Dated: January 9, 2018 s/Linda V. Parker

U.S. District Court Judge

I hereby certify that a copy of the foregoing document was served upon counsel of 

record on January 9, 2018, by electronic and/or ordinary mail.

s/Julie Owens

Acting in the absence of Richard Loury

Case Manager