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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KENNETH WITHERSPOON, 

 Petitioner, Case No. 14-14888 

 HONORABLE TERRENCE G. BERG 

v. UNITED STATES DISTRICT JUDGE 

RANDALL HAAS, 

 Respondent. 

______________________________________/ 

OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT OF 

HABEAS CORPUS; (2) A CERTIFICATE OF APPEALABILITY; AND (3) 

LEAVE TO APPEAL IN FORMA PAUPERIS

Kenneth Witherspoon, (“petitioner”), confined at the Cotton Correctional 

Facility in Jackson, Michigan, seeks the issuance of a writ of habeas corpus 

pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his 

conviction for first-degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a); 

kidnapping, Mich. Comp. Laws § 750.349; and first-degree home invasion, Mich. 

Comp. Laws § 750.110a(2). For the reasons stated below, the application for a writ 

of habeas corpus is DENIED WITH PREJUDICE. 

I. FACTUAL BACKGROUND 

Petitioner was convicted following a jury trial in the Macomb County Circuit 

Court. This Court recites verbatim the relevant facts regarding petitioner’s 

conviction from the Michigan Court of Appeals’ opinion affirming his conviction, 

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which 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): 

 The prosecution presented the preliminary examination testimony of a 

victim, Samantha Wright, in which Wright testified that four gloved 

men broke into her house and tied her up, as well as tying up her 

fiancé Rico White and her son. 1 At least three of the men were armed. 

The men then forced the family into a Ford Expedition and took them 

to another location. Viewed in a light most favorable to the 

prosecution, this evidence was sufficient to establish the elements of 

kidnapping and first-degree home invasion. 

In addition, the police and medical examiner testified that they 

discovered White’s body in a vacant lot in Detroit. White had been shot 

six times in the back of the head. The evidence established that the 

shots were in rapid succession and occurred over a short period of time 

while the shooter was standing behind the victim. This was sufficient 

to establish the elements of first-degree premeditated murder. 

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

[T]he prosecution presented DNA evidence and cell phone records that 

linked [petitioner] to the crimes. As discussed previously, defendant’s 

DNA was present inside the white work gloves recovered from the Ford 

Expedition. These gloves had White’s blood on them. Moreover, the cell 

phone records indicated that, at the time of the killing, defendant was 

near the location where White’s body was later discovered. The phone 

records also established that, during the time the crime was taking 

place, defendant uncharacteristically did not make any cell phone 

calls. 

People v. Witherspoon, No. 300875, 2013 WL 1352435, at *3-4 (Mich. Ct. App. Apr. 

5, 2013)(internal citations omitted). 

Petitioner’s conviction was affirmed on appeal. Id., lv. Den. No. 147180, 2013 

WL 10776596 (Mich. Sept. 30, 2013). 

 

1 Wright had testified via telephone at the preliminary examination of defendant’s cousin, Herbert 

Jamal Witherspoon, who was tried separately before the Macomb Circuit Court and convicted of 

similar offenses. Wright’s transcribed testimony from Herbert’s preliminary examination was read 

into evidence at defendant’s trial. The use of Wright’s preliminary examination testimony at 

defendant’s trial is discussed more fully in part VIII of this opinion. (Footnote original). 

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

I. Petitioner was deprived of his Sixth Amendment right to effective 

assistance of counsel when trial counsel agreed to waive the court 

appearance of a key witness who provided testimonial evidence by 

telephonic means in a codefendant’s trial and counsel failed to object 

on confrontational rights grounds to having that witness’s telephonic 

testimony from a codefendant’s trial admitted as substantive evidence 

at Petitioner’s trial. 

II. The state trial court erred in admitting the Bode Technologies 

Laboratory result as testimonial evidence on the issue of Petitioner’s 

identity through DNA evidence because the laboratory analyst who 

conducted the test should have been cross-examined about a second 

donor of DNA evidence who was the likely killer. 

III. Petitioner’s trial counsel was ineffective stipulating to the 

admission of the Bode Technologies laboratory report, given its 

testimonial hearsay nature and opting not to call the laboratory 

analyst to cross-examine him regarding serious flaws in his report on 

the key issue of identification of a second person as being the killer 

through DNA evidence. 

IV. The trial court unlawfully deprived Petitioner of his due process 

and equal protection rights when it denied his motions for directed 

verdict of acquittal on the basis of insufficient evidence of identity of 

Petitioner as the killer in light of the Bode Technologies lab report 

showing more than one possible donor had worn the gloves used in the 

murder. 

V. Petitioner was denied a constitutional right to a fair trial on the 

basis of multiple instances of prosecutor misconduct when the 

prosecutor (1) made false statements that were purposefully 

misleading about the presence of a second DNA source inside the 

gloves found at the murder scene; and (2) repeatedly badgered the 

defense’s DNA expert witness about irrelevant matters regarding her 

dismissal from the Michigan State Police and her dislike of her former 

coworkers. 

VI. The trial court unlawfully sentenced Petitioner to lengthy prison 

terms of 285-600 months for kidnapping and 120-240 months for first 

degree home invasion convictions when it failed to consider mitigating 

factors when sentencing Petitioner. 

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II. LEGAL STANDARD 

 

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

imposes the following standard of review for habeas cases: 

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

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

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

court proceedings unless the adjudication of the claim– 

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

involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme 

Court of the United States; or 

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

unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding. 

 

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

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

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

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

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

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

facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the 

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

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

incorrectly.” Id. at 410-11.

The Supreme Court explained that “[A] federal court’s collateral review of a 

state-court decision must be consistent with the respect due state courts in our 

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federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “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)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 

(1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[A] state court’s 

determination that a claim lacks merit precludes federal habeas relief so long as 

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” 

Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 

U.S. 652, 664 (2004)). In order to obtain habeas relief in federal court, a state 

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

lacking in justification that there was an error well understood and comprehended 

in existing law beyond any possibility for fairminded disagreement.” Id. at 103. 

III. ANALYSIS

A. Ineffective Assistance of Counsel 

The Court discusses Petitioner’s first, third, and a portion of Petitioner’s fifth 

claims together because they allege the ineffective assistance of trial counsel. 

 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 

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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 the 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). 

 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. 111, 123 (2009)(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 

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123 (citing Yarborough v. Alvarado, 541 U.S. at 664). 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)). 

 Because of this doubly deferential standard, the Supreme Court has indicated 

that: 

Federal habeas courts must guard against the danger of equating 

unreasonableness under Strickland with unreasonableness under § 

2254(d). When § 2254(d) applies, the question is not whether counsel’s 

actions were reasonable. The question is whether there is any 

reasonable argument that counsel satisfied Strickland’s deferential 

standard. 

 

Harrington v. Richter, 562 U.S. at 105. 

 In addition, a reviewing court must not merely give defense counsel the 

benefit of the doubt, but must also affirmatively entertain the range of possible 

reasons that counsel may have had for proceeding as he or she did. Cullen v. 

Pinholster, 131 S. Ct. 1388, 1407 (2011). 

In his first claim, Petitioner argues that trial counsel was ineffective for 

waiving the court appearance of Samantha Wright and for failing to object to her 

telephonic testimony from the co-defendant’s preliminary examination being 

admitted into evidence at Petitioner’s trial, on the ground that its admission 

violated Petitioner’s Sixth Amendment right to confrontation. 

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Wright testified via telephone at the preliminary examination of Petitioner’s 

cousin, Herbert Jamal Witherspoon. Wright’s transcribed testimony from this 

preliminary examination was read to the jury at Petitioner’s trial, as substantive 

evidence for the prosecution. Trial counsel stipulated to the admission of Wright’s 

transcribed testimony from Herbert’s preliminary examination. The Michigan 

Court of Appeals remanded the matter to the trial court for an evidentiary hearing 

concerning the use of this prior testimony from the co-defendant’s preliminary 

examination. People v. Witherspoon, Nos. 300875 & 302711 (Mich.Ct.App. March 

16, 2012). In rejecting petitioner’s claim, the Michigan Court of Appeals noted 

that: 

Following the evidentiary hearing, at which defendant’s attorney and 

several other witnesses testified, the trial court issued a thorough 

opinion and order responding to our inquiries. The trial judge made 

several well-supported findings of fact, including: (1) it was actually 

Wright who had testified via telephone at Herbert’s preliminary 

examination; (2) Wright had been properly sworn before giving her 

telephonic testimony at Herbert’s preliminary examination; (3) there 

existed “good cause” under MCR 6.006(B) to allow Wright to testify via 

telephone at Herbert’s preliminary examination; (4) Herbert’s attorney 

had a full and adequate opportunity to cross-examine Wright over the 

telephone at the preliminary examination; (5) counsel stipulated to the 

use of Wright’s testimony from Herbert’s preliminary examination at 

defendant’s trial; and (7) counsel believed that using Wright’s 

testimony from Herbert’s preliminary examination would not prejudice 

defendant because Wright had never identified him in her testimony. 

People v. Witherspoon, 2013 WL 1352435, at * 8 (footnote omitted). 

 The Michigan Court of Appeals rejected Petitioner’s ineffective assistance of 

counsel claim: 

Defendant’s trial attorney testified concerning his motivations and 

reasons for the specific actions he took at trial. In particular, he 

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testified that because Wright had never identified his client as one of 

the assailants, he did not believe it would be prejudicial to admit 

Wright’s transcribed testimony from Herbert’s preliminary 

examination. Defense counsel also testified that he believed it would be 

less emotional for the jury if Wright did not appear in person at trial. 

It is not unreasonable for a defense attorney to stipulate to certain 

evidence in order to prevent a damaging witness from personally 

appearing before the jury. Given counsel’s testimony at the 

evidentiary hearing, it is clear that he made a reasonable, strategic 

decision to stipulate to the admission of Wright's transcribed testimony 

at defendant’s trial. 

People v. Witherspoon, 2013 WL 1352435, at * 9 (internal citation omitted). 

 Petitioner is not entitled to relief on this claim for several reasons. First, 

trial counsel’s decision to stipulate to Wright’s preliminary examination testimony 

was a valid strategy that avoided a potentially emotional and sympathetic witness 

from appearing live to testify before the jury. A trial attorney’s decision to avoid 

cross-examining a sympathetic witness is a valid trial strategy that defeats an 

ineffective assistance of counsel claim. See e.g. Muntaser v. Bradshaw, 429 Fed. 

App’x 515, 522 (6th Cir. 2011). 

 Secondly, Petitioner was not prejudiced by the admission of Wright’s 

preliminary examination testimony because she did not identify Petitioner as one of 

the suspects nor did she otherwise incriminate Petitioner. Confrontation Clause 

violations are subject to harmless error review. See Bulls v. Jones, 274 F. 3d 329, 

334 (6th Cir. 2001). In Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), the 

Supreme Court held that for purposes of determining whether federal habeas relief 

must be granted to a state prisoner on the ground of federal constitutional error, the 

appropriate harmless error standard to apply is whether the error had a substantial 

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and injurious effect or influence in determining the jury’s verdict. “The prejudice 

prong of the ineffective assistance analysis subsumes the Brecht harmless-error 

review.” Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009). Because Wright’s 

testimony did not implicate Petitioner in the murder, kidnapping, or home invasion, 

the admission of her preliminary examination testimony at petitioner’s trial was 

harmless error. See U.S. v. Driver, 535 F. 3d 424, 428 (6th Cir. 2008). Because the 

admission of Wright’s out-of-court statements was harmless error, Petitioner cannot 

satisfy Strickland’s prejudice requirement. See e.g. Bell v. Hurley, 97 F. App’x 11, 17 

(6th Cir. 2004). 

 Finally, to the extent that Petitioner contends that trial counsel was 

ineffective for failing to request the production of Ms. Wright for trial, Petitioner 

failed to show that Ms. Wright would have offered favorable testimony to the 

defense. Counsel was thus not ineffective for failing to seek the production of Ms. 

Wright at his trial. See Greene v. Lafler, 447 F. Supp. 2d 780, 793 (E.D. Mich. 2006). 

Petitioner is not entitled to relief on his first claim. 

 In his third claim, Petitioner argues that trial counsel was ineffective for 

stipulating to the admission of the laboratory report from Bode Technologies, which 

linked Petitioner’s DNA to the DNA found on the work gloves at the crime scene, 

rather than insisting that the laboratory technician who performed the DNA 

analysis appear at trial, where he could have been subject to cross-examination. 

 Petitioner is not entitled to relief on this claim for several reasons. First, as 

the Michigan Court of Appeals noted in its opinion, the admission of this report 

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was “akin to a foregone conclusion” and that “[f]aced with the inevitability of 

unfavorable testimony from an expert laboratory analyst, trial counsel decided to 

stipulate to the report's admission.” Witherspoon, 2013 WL 1352435, at * 1. 

 Moreover, as the Michigan Court of Appeals also noted, Witherspoon, 2013 

WL 1352435, at * 2, trial counsel knew, or should have known, that the same 

inculpatory DNA evidence could be introduced through the testimony of Ann 

Chamberlain, M.S., an independent DNA expert who had been appointed for the 

defense. Chamberlain found that Petitioner’s DNA was present in at least one of 

the white work gloves recovered from the Ford Expedition, corroborating the 

prosecution’s laboratory report. Under Michigan law, when an independent expert 

is appointed at public expense, that expert must make his or her findings available 

to both parties and may be called as a witness by either party. M.R.E. 706(a). Thus, 

even if trial counsel had successfully objected to the admission of the Bode 

Technologies report, DNA evidence linking petitioner to the crime scene still could 

have been introduced by the prosecution through Chamberlain’s testimony. The 

Michigan Court of Appeals noted: 

Thus, rather than hiding from his own expert or trying to exclude the 

laboratory report, he [counsel] strategically decided to attempt to 

minimize the effect of the DNA evidence by focusing on another finding 

that Chamberlain had made. In particular, Chamberlain had also 

found DNA from an unknown, second source inside the white work 

glove. Relying on Chamberlain’s finding in this regard, defense counsel 

stated during his closing argument that he had “never disputed that 

those gloves contained [defendant]’s DNA” and that “the science is the 

science ... can't change it.” Instead, defense counsel passionately 

argued that because the gloves contained DNA from a second source, 

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“two people” must have worn the gloves, and this created reasonable 

doubt as to defendant’s guilt. 

People v. Witherspoon, 2013 WL 1352435, at *2 (internal footnote omitted). 

 The Michigan Court of Appeals concluded: 

By stipulating to the admission of the laboratory report, defense 

counsel was merely conceding the inevitable, freeing him to 

strategically attack the DNA evidence by arguing that there was a 

second source of the DNA inside the gloves. 

People v. Witherspoon, 2013 WL 1352435, at *3. 

 Petitioner was not prejudiced by his lawyer’s decision to stipulate to the 

admission of the DNA evidence from the Bode Technologies Report, in light of the 

fact that this same evidence would have been introduced anyway in a more lengthy 

process without stipulations from counsel. See Burke v. U.S., 261 F. Supp. 2d 854, 

862 (E.D. Mich. 2003). Petitioner is thus not entitled to relief on his third claim. 

 As part of his fifth claim, Petitioner contends that trial counsel was 

ineffective for failing to object to the alleged prosecutorial misconduct that he 

complains of in his fifth claim. 

 To show prejudice under Strickland for failing to object to prosecutorial 

misconduct, a habeas petitioner must show that but for the alleged error of his trial 

counsel in failing to object to the prosecutor’s improper questions and arguments, 

there is a reasonable probability that the proceeding would have been different. 

Hinkle v. Randle, 271 F. 3d 239, 245 (6th Cir. 2001). Because the Court determines 

infra that the prosecutor’s comments or questions did not deprive petitioner of a 

fundamentally fair trial, Petitioner is unable to establish that he was prejudiced by 

counsel’s failure to object to these remarks. See Slagle v. Bagley, 457 F. 3d 501, 528 

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(6th Cir. 2006). In sum, Petitioner is not entitled to relief on his ineffective 

assistance of counsel claims. 

B. Confrontation Clause 

In his second claim, petitioner contends that his Sixth Amendment right to 

confrontation was violated by the admission of the Bode Technologies Laboratory 

Report, because it constituted testimonial evidence. Respondent contends that 

Petitioner’s claim is waived because trial counsel stipulated to the admission of the 

report. 

 Waiver is an “‘intentional relinquishment of a known right.’” United States v. 

Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 

(1938)). A criminal defendant who has waived his rights “may not then seek 

appellate review of claimed deprivation of those rights, for his waiver has 

extinguished any error.” United States v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996) 

(citing Olano, 507 U.S. at 733-34). See also Shahideh v. McKee, 488 Fed. App’x 963, 

965 (6th Cir. 2012) (“waiver is a recognized, independent and adequate state law 

ground for refusing to review alleged trial errors”). The right to confrontation may 

be waived, including by a failure to object to the “offending evidence.” MelendezDiaz v. Massachusetts, 557 U.S. 305, 314, n. 3 (2009). Because defense counsel 

stipulated to the admission of this evidence, Petitioner has waived review of his 

Confrontation Clause claim. See United States v. Chun Ya Cheung, 350 F. App’x 19, 

21-22 (6th Cir. 2009). Moreover, a defendant in a criminal case cannot complain of 

error which he himself has invited. Shields v. United States, 273 U.S. 583, 586 

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(1927). When a petitioner invites an error in the trial court, he is precluded from 

seeking habeas corpus relief for that error. See Fields v. Bagley, 275 F. 3d 478, 486 

(6th Cir. 2001). By agreeing to the admission of the Bode Technologies Laboratory 

Report, Petitioner is precluded from seeking habeas relief on this claim. 

C. Sufficiency of the Evidence 

Petitioner next contends that there was insufficient evidence to establish his 

identity as one of the perpetrators of the murder, kidnapping, and home invasion. 

The Michigan Court of Appeals rejected this claim: 

Contrary to defendant’s assertion, the prosecution presented DNA 

evidence and cell phone records that linked him to the crimes. As 

discussed previously, defendant’s DNA was present inside the white 

work gloves recovered from the Ford Expedition. These gloves had 

White’s blood on them. Moreover, the cell phone records indicated that, 

at the time of the killing, defendant was near the location where 

White’s body was later discovered. The phone records also established 

that, during the time the crime was taking place, defendant 

uncharacteristically did not make any cell phone calls. We conclude 

that there was sufficient evidence of defendant’s identity to permit the 

jury to find beyond a reasonable doubt that he was one of the 

perpetrators of the crimes. 

People v. Witherspoon, 2013 WL 1352435, at *4. 

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

against conviction except upon proof beyond a reasonable doubt of every fact 

necessary to constitute the crime with which he is charged.” In Re Winship, 397 

U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the 

evidence to support a criminal conviction is, “whether the record evidence could 

reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. 

Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, does not require a court 

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to “ask itself whether it believes that the evidence at the trial established guilt 

beyond a reasonable doubt.” Instead, the relevant question is whether, after 

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

trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt. Id. at 318-19 (internal citation and footnote omitted)(emphasis in 

the original). 

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

decision that rejects a sufficiency of the evidence claim simply because the federal 

court disagrees with the state court’s resolution of that claim. Instead, a federal 

court may grant habeas relief only if the state court decision was an objectively 

unreasonable application of the Jackson standard. See Cavazos v. Smith, 132 S. Ct. 

2, 4 (2011). “Because rational people can sometimes disagree, the inevitable 

consequence of this settled law is that judges will sometimes encounter convictions 

that they believe to be mistaken, but that they must nonetheless uphold.” Id. 

Indeed, for a federal habeas court reviewing a state court conviction, “the only 

question under Jackson is whether that finding was so insupportable as to fall 

below the threshold of bare rationality.” Coleman v. Johnson, 132 S.Ct. 2060, 2065 

(2012). 

 In the present case, there was strong circumstantial evidence which 

established Petitioner’s identity as one of the perpetrators. Circumstantial evidence 

alone is sufficient to support a conviction, and it is not necessary for the evidence at 

trial to exclude every reasonable hypothesis except that of guilt. Johnson v. Coyle, 

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200 F.3d 987, 992 (6th Cir. 2000)(internal quotations omitted). Identity of a 

defendant can be inferred through circumstantial evidence. See Dell v. Straub, 194 

F. Supp. 2d 629, 648 (E.D. Mich. 2002). 

 Eyewitness identification is not necessary to sustain a conviction. See United 

States v. Brown, 408 F. 3d 1049, 1051 (8th Cir. 2005); Dell v. Straub, 194 F. Supp. 

2d at 648. In the present case, the DNA evidence adduced at trial was sufficient in 

and of itself to establish Petitioner’s identity as one of the perpetrators. See e.g. U.S. 

v. Seawood, 172 F. 3d 986, 988 (7th Cir. 1999); Kelley v. Jackson, 353 F. Supp. 2d 

887, 892 (E.D. Mich. 2005). Petitioner’s cell phone activity near the crime scene at 

the time of the crime was also circumstantial evidence that was sufficient to 

establish Petitioner’s involvement. See United States v. Starnes, 552 F. App’x 520, 

525 (6th Cir. 2014). 

 Because there were multiple pieces of evidence to establish Petitioner’s 

identity as one of the perpetrators of the crimes in this case, the Michigan Court of 

Appeals did not unreasonably apply Jackson v. Virginia in rejecting Petitioner’s 

sufficiency of evidence claim. See Moreland v. Bradshaw, 699 F. 3d 908, 919-21 (6th 

Cir. 2012). Petitioner is not entitled to relief on his fourth claim. 

D. Prosecutorial Misconduct 

 Petitioner next contends that he was denied a fair trial through prosecutorial 

misconduct. 

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 Respondent contends that Petitioner’s claim is procedurally defaulted 

because petitioner failed to object at trial. Petitioner claims that trial counsel was 

ineffective for failing to object to the alleged misconduct. Ineffective assistance of 

counsel may establish cause for procedural default. Edwards v. Carpenter, 529 U.S. 

446, 451-52 (2000). Given that the cause and prejudice inquiry for the procedural 

default issue merges with an analysis of the merits of petitioner’s defaulted claim, 

the Court will consider the merits of this claim. See Cameron v. Birkett, 348 F. 

Supp. 2d 825, 836 (E.D. Mich. 2004). 

 “Claims of prosecutorial misconduct are reviewed deferentially on habeas 

review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing Bowling v. 

Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor’s improper comments will 

be held to violate a criminal defendant’s constitutional rights only if they “‘so 

infected the trial with unfairness as to make the resulting conviction a denial of due 

process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly v. 

DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will thus form 

the basis for habeas relief only if the conduct was so egregious as to render the 

entire trial fundamentally unfair based on the totality of the circumstances. 

Donnelly v. DeChristoforo, 416 U.S. at 643-45. In order to obtain habeas relief on a 

prosecutorial misconduct claim, a habeas petitioner must show that the state court’s 

rejection of his prosecutorial misconduct claim “was so lacking in justification that 

there was an error well understood and comprehended in existing law beyond any 

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possibility for fairminded disagreement.” Parker v. Matthews, 132 S. Ct. 2148, 2155 

(2012)(quoting Harrington, 562 U.S. at 103). 

 Petitioner first contends that the prosecutor made false and misleading 

statements in his closing argument when he stated that there was no other DNA 

source or, if the jury believed there was a second source, the DNA from this second 

donor was in such a small amount that it could not have been left by anyone 

involved in the shooting. As the Michigan Court of Appeals noted in rejecting 

petitioner’s claim, although Chamberlain testified that there was a small amount of 

DNA from a second, unknown donor inside the gloves, the prosecution presented 

evidence there was no second DNA source, thus, the prosecutor’s argument was 

proper. People v. Witherspoon, 2013 WL 1352435, at *5. 

 Misrepresenting facts in evidence by a prosecutor can amount to substantial 

error because doing so “may profoundly impress a jury and may have a significant 

impact on the jury's deliberations.” Washington v. Hofbauer, 228 F. 3d 689, 700 (6th 

Cir. 2000)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 646 (1974)). Likewise, it 

is improper for a prosecutor during closing arguments to bring to the jury any 

purported facts which have not been introduced into evidence and which are 

prejudicial. Byrd v. Collins, 209 F. 3d 486, 535 (6th Cir. 2000). However, 

prosecutors must be given leeway to argue reasonable inferences from the evidence. 

Id.

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 In the present case, the Bode Technologies Laboratory Report indicated that 

there was only one DNA sample taken from the glove. The prosecutor’s argument 

was not improper because there was some factual support for his comments. 

Because there was at least some factual support on the record for the prosecutor’s 

argument, the prosecutor’s remarks did not deprive petitioner of a fair trial. See 

U.S. v. Henry, 545 F.3d 367, 377 (6th Cir. 2008). Furthermore, the judge instructed 

the jurors that the lawyers’ arguments, questions, or statements were not evidence. 

(Tr. 7/23/10, pp. 181-82). A trial court can generally correct improprieties in a 

prosecutor’s closing arguments by instructing the jury that closing arguments are 

not evidence. See United States v. Crosgrove, 637 F.3d 646, 664 (6th Cir. 2011). Any 

alleged prosecutorial misconduct was thus ameliorated by the trial court’s 

instruction that the lawyers’ comments and statements were not evidence. See 

Hamblin v. Mitchell, 354 F. 3d 482, 495 (6th Cir. 2003). 

 Petitioner next contends that the prosecutor committed misconduct by his 

improper cross-examination of defense expert Chamberlain. The Michigan Court of 

Appeals rejected petitioner’s claim: 

It is true that the prosecutor asked Chamberlain about the reason for 

her dismissal from the Michigan State Police and her dislike of her 

former coworkers. But these matters were relevant to Chamberlain’s 

potential bias. 

People v. Witherspoon, 2013 WL 1352435, at *5. 

Although petitioner has framed his improper impeachment claim as a 

prosecutorial-misconduct challenge, “it amounts in the end to a challenge to the 

trial court’s decision to allow the introduction of this evidence.” Webb v. Mitchell, 

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586 F. 3d 383, 397 (6th Cir. 2009). The Michigan Court of Appeals held that the 

questions that the prosecutor asked about the reasons for Chamberlain’s dismissal 

from the Michigan State Police and her dislike of her former co-workers were 

relevant to Chamberlain’s possible bias. The Supreme Court has held that evidence 

that tends to show a witness’s bias is relevant impeachment evidence and therefore 

admissible. United States v. Abel, 469 U.S. 45, 51 (1984). More importantly, for a 

prosecutor’s cross-examination of a witness to rise to the level of prosecutorial 

misconduct, a defendant is required to show intentional misconduct or reckless 

disregard for the truth on the part of the prosecutor. See United States v. Sexton,

119 Fed. App’x 735, 750 (6th Cir. 2005), vacated in part on other grounds, No. 2005 

WL 6011238 (6th Cir. Apr. 4, 2005). The questions posed by the prosecutor to Ms. 

Chamberlain were relevant to establishing potential bias. A prosecutor does not 

commit misconduct by asking witnesses relevant questions. See Slagle v. Bagley, 

457 F. 3d at 518. Because the prosecutor’s questions were relevant on the issue of 

Ms. Chamberlain’s credibility, the questions did not deprive petitioner of a fair trial. 

Tan Van Le v. Prelesnik, 2006 WL 2620693, at *10 (W.D. Mich. Sept. 12, 2006) 

(“The [Supreme ]Court has never found misconduct arising from a prosecutor’s 

cross-examination on a central issue such as witness bias.”). Petitioner is not 

entitled to relief on his fifth claim. 

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E. Sentencing Claims 

In his sixth claim, Petitioner contends that the trial judge incorrectly scored 

his sentencing guidelines for the kidnapping and home invasion charges and failed 

to consider mitigating evidence on petitioner’s behalf. 2

State courts are the final arbiters of state law. See Bradshaw v. Richey, 546 

U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Therefore, 

claims which arise out of a state trial court’s sentencing decision are not normally 

cognizable on federal habeas review, unless the habeas petitioner can show that the 

sentence imposed exceeded the statutory limits or is wholly unauthorized by law. 

See Vliet v. Renico, 193 F. Supp. 2d 1010, 1014 (E.D. Mich. 2002). Thus, a sentence 

imposed within the statutory limits is not generally subject to habeas review. 

Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 

797 (E.D. Mich. 1999). 

Petitioner’s claim that the state trial court incorrectly scored or calculated his 

sentencing guidelines range under the Michigan Sentencing Guidelines is not a 

cognizable claim for federal habeas review, because it is basically a state law claim. 

 

2 Respondent suggested that this Court decline to review petitioner’s sentencing claims under the 

concurrent sentence doctrine, because petitioner is serving a nonparolable life sentence on his firstdegree murder conviction. The concurrent sentence doctrine allows a federal court to decline to 

review habeas corpus petitions “which challenge criminal convictions that have resulted in 

sentences, and other collateral consequences, which are wholly subsumed by those conferred by other 

unassailable convictions.” Wilson v. Straub, 185 F. Supp. 2d 766, 769 (E.D. Mich. 2002)(internal 

quotation omitted). A court should exercise its discretion to decline to review a habeas claim under 

the concurrent sentence doctrine only in cases where it is clear that there are no collateral 

consequences to the petitioner and the issue does not involve a significant question that merits 

consideration. Id. “The concurrent sentencing doctrine is a discretionary one, and courts ‘are 

admittedly hesitant to apply [it].’” Groves v. Meko, 516 Fed. App’x 507, 508 (6th Cir. 2013)(quoting 

Dale v. Haeberlin, 878 F.2d 930, 935, n. 3 (6th Cir. 1989)). The Court declines to invoke the 

concurrent sentence doctrine because respondent made no effort to demonstrate a lack of collateral 

consequences attaching to petitioner’s sentences on the other offenses. See Pillette v. Berghuis, 408 

F. App’x 873, 886, n. 8 (6th Cir. 2010). 

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See Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007); Howard v. White, 76 F. 

App’x 52, 53 (6th Cir. 2003). Petitioner had “no state-created interest in having the 

Michigan Sentencing Guidelines applied rigidly in determining his sentence.” See 

Mitchell v. Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009). “[I]n short, 

petitioner had no federal constitutional right to be sentenced within Michigan’s 

guideline minimum sentence recommendations.” Doyle v. Scutt, 347 F. Supp. 2d 

474, 485 (E.D. Mich. 2004). Any error by the trial court in calculating his guideline 

score would not merit habeas relief. Id. 

To the extent that Petitioner is arguing that the trial court failed to afford 

him individualized consideration of mitigating evidence on his behalf, this claim 

fails because the Supreme Court has limited its holding concerning mitigating 

evidence to capital cases. See Alvarado v. Hill, 252 F. 3d 1066, 1069 (9th Cir. 

2001)(citing to Harmelin v. Michigan, 501 U.S. 957, 996 (1991)). Because petitioner 

had no constitutional right to an individualized sentence, no constitutional error 

occurred when the state trial court failed to consider mitigating evidence on his 

behalf at sentencing. See Hastings v. Yukins, 194 F. Supp. 2d 659, 673 (E.D. Mich. 

2002). Petitioner is not entitled to relief on his sixth claim. 

IV. Conclusion

 For the reasons set forth above, the petition for writ of habeas corpus is 

DENIED. The Court will also deny a certificate of appealability to petitioner. In 

order to obtain a certificate of appealability, a prisoner must make a substantial 

showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To 

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demonstrate this denial, the applicant is required to show that reasonable jurists 

could debate whether, or agree that, the petition should have been resolved in a 

different manner, or that the issues presented were adequate to deserve 

encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). 

When a district court rejects a habeas petitioner’s constitutional claims on the 

merits, the petitioner must demonstrate that reasonable jurists would find the 

district court’s assessment of the constitutional claims to be debatable or wrong. Id. 

at 484. “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; See also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 

(E.D. Mich. 2010). 

For the reasons stated in this opinion, the Court will deny petitioner a 

certificate of appealability because he has failed to make a substantial showing of 

the denial of a federal constitutional right. See Millender v. Adams, 187 F. Supp. 2d 

852, 880 (E.D. Mich. 2002). The Court will also deny petitioner leave to appeal in 

forma pauperis, because the appeal would be frivolous. See Allen v. Stovall, 156 F. 

Supp. 2d 791, 798 (E.D. Mich. 2001). 

V. ORDER

 Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of 

Habeas Corpus is DENIED WITH PREJUDICE.

 IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED. 

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IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal 

in forma pauperis. 

SO ORDERED.

s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Dated: May 17, 2016 

Certificate of Service 

I hereby certify that this Order was electronically submitted on May 17, 

2016, using the CM/ECF system, which will send notification to each party. 

s/A. Chubb 

 Case Manager 

 

 

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