UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RANDY SCOTT ANGER,

Petitioner, Civil No. 2:14-CV-14159

HONORABLE GERALD E. ROSEN

v. CHIEF UNITED STATES DISTRICT JUDGE

PAUL KLEE,

Respondent,

_________________________________/

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS

AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO

APPEAL IN FORMA PAUPERIS

Randy Scott Anger, (“Petitioner”), confined at the Gus Harrison Correctional Facility

in Adrian, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 

In his pro se application, petitioner challenges his convictions for possession of 50 or more

but less than 450 grams of cocaine, M.C.L.A. 330.7403(2)(a)(iii); three counts of

possession of other controlled substances, M.C.L.A. 330.7403(2)(b)(ii); one count of

possession of a firearm during the commission of a felony, M.C.L. A. 750.227b, and being

a second felony habitual offender, M.C.L.A. 769.10. For the reasons that follow, the

petition for writ of habeas corpus is DENIED. 

I. Background

On September 25, 2007, officers executed a search warrant at a property at 1212

Woodlow in Waterford Township, Michigan, where petitioner was living. Petitioner was at

home showering at the time of the raid. Police searched the home and the pole barn on

the property and recovered cocaine, marijuana, vials of steroids, a loaded pistol, other

firearms, and over $ 4,000.00 in cash. One of the officers searching the home found a set

1

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 1 of 23 Pg ID 1945
of keys on the kitchen counter that included a key that opened the door to the house, a key

to a pickup truck parked in the driveway that was registered in petitioner’s name, and a key

that opened a tool box in the pole barn where some of the contraband was recovered,. The

officer in charge of the case ran petitioner’s driving record through the Michigan Secretary

of State and it listed 1212 Woodlow as petitioner’s address, although title to the property

had been conveyed by petitioner to another individual named Carrie Stafford.

Following a jury trial, petitioner was convicted in the Oakland County Circuit Court

of possession of 50 to 450 grams of cocaine, three counts of possession of other controlled

substances, one count of possession of a firearm during the commission of a felony, and

being a second felony habitual offender. Petitioner was found not guilty of several other

drug and firearms offenses.

Petitioner’s conviction was affirmed on appeal. People v. Anger, No. 300164, 2011

WL 6186957 (Mich. Ct. App. Dec. 13, 2011); lv. den. 492 Mich. 865 (2012). Petitioner then

filed a post-conviction motion for relief from judgment, which was denied. People v. Anger,

No. 07-218338-FH (Oakland County Circuit Court, December 13, 2012). The Michigan

appellate courts denied petitioner leave to appeal the trial court’s denial of his postconviction motion. People v. Anger, No. 314281 (Mich.Ct.App. October 8, 2013); lv. den.

495 Mich. 918 (2013).

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

I. Ineffective assistance of counsel throughout criminal trial and appeal

process [based on] (a) Failure to object or notify the Defendant of the

prosecution’s intent to seek erroneous sentence enhancement, (b) failure to

object to the non-existent informant’s identity being kept confidential and

whom [sic] is the actual perpetrator of this crime, (c) failure to object or

advise the Defendant of his right to refuse court ordered administration of

antipsychotic drugs, and (d) failure to object to the judge revoking the

2

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 2 of 23 Pg ID 1946
Defendant’s bail without cause. The appellate attorney refused to argue

these issues in the appeals brief.

II. The police used information provided by the actual perpetrator and use[d]

false statements to secure an invalid search warrant to frame the Defendant.

III. The Defendant received a severe closed head [injury] while waiting for his

trial date and never regained his competency that left him unable to defend

himself.

IV. The [trial] court revoked the Defendant’s bail without cause and held him

in jail pending a competency hearing.

II. Standard of Review

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

Act of 1996 (AEDPA), imposes the following standard of review for habeas cases: 

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

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

to any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim–

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

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; or

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

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

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

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

3

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 3 of 23 Pg ID 1947
judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly.” Id. at 410-11.

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

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

Harrington, 562 U.S. at 103.

III. Discussion

A. The motion for the appointment of counsel will be denied.

Petitioner has requested the appointment of counsel to assist with his habeas case.

There is no constitutional right to counsel in habeas proceedings. Cobas v.

Burgess, 306 F.3d 441, 444 (6th Cir. 2002); Lemeshko v. Wrona, 325 F. Supp, 2d 778, 787

(E.D. Mich. 2004). The decision to appoint counsel for a federal habeas petitioner is within

the discretion of the court and is required only where the interests of justice or due process

4

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 4 of 23 Pg ID 1948
so require. Mira v. Marshall, 806 F. 2d 636, 638 (6th Cir. 1986). Appointment of counsel

in a habeas proceeding is mandatory only if the district court determines that an

evidentiary hearing is required. Lemeshko, 325 F. Supp. 2d at 787. If no evidentiary

hearing is necessary, the appointment of counsel in a habeas case remains discretionary.

Id.

Counsel may be appointed, in exceptional cases, for a prisoner appearing pro se

in a habeas action. Lemeshko, 325 F. Supp. 2d at 788. The exceptional circumstances

justifying the appointment of counsel to represent a prisoner acting pro se in a habeas

action occur where a petitioner has made a colorable claim, but lacks the means to

adequately investigate, prepare, or present the claim. Id. 

Petitioner has filed a petition for writ of habeas corpus and numerous briefs,

pleadings, and exhibits. Petitioner's claims are “sufficiently clear and coherently organized

as to allow this Court to weigh the merits of his claims.” Lemeshko, 325 F. Supp. 2d at

788. In light of the fact that none of these claims have any merit, petitioner is not entitled

to the appointment of counsel. Id. The motion for the appointment of counsel is denied.

B. Claim # 1. Petitioner’s ineffective assistance of counsel claims 

are unexhausted and procedurally defaulted.

Petitioner first alleges the ineffective assistance of trial and appellate counsel.

Respondent contends that petitioner’s ineffective assistance of counsel claims are

procedurally defaulted because he never properly exhausted them with the Michigan

courts and no longer has an available remedy with which to do so.

As a general rule, a state prisoner seeking federal habeas relief must first exhaust

his or her available state court remedies before raising a claim in federal court. 28 U.S.C.

5

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 5 of 23 Pg ID 1949
§ 2254(b) and (c); Picard v. Connor, 404 U. S. 270, 275-78 (1971). A petition for a writ of

habeas corpus filed by a state prisoner shall not be granted unless the petitioner has

exhausted his or her available state court remedies, there is an absence of available state

corrective process, or circumstances exist that render such process ineffective to protect

the petitioner’s rights. See Turner v. Bagley, 401 F. 3d 718, 724 (6th Cir. 2005).

Petitioner did not raise an ineffective assistance of trial or appellate counsel claim

on his direct appeal.

Petitioner’s post-conviction motion for relief from judgment that he filed with the trial

court did not contain an ineffective assistance of counsel claim, either.1 Although

petitioner requested an evidentiary hearing pursuant to People v. Ginther, 390 Mich. 436,

443; 212 N.W. 2d 922 (1973), petitioner only requested a hearing in the context of being

able to confront the confidential informant in this case. Petitioner did not mention any

ineffective assistance of counsel claims in his motion for relief from judgment. In his

applications for leave to appeal the denial of his post-conviction motion to the Michigan

Court of Appeals and the Michigan Supreme Court, petitioner for the first time mentioned

allegations of ineffective assistance of trial and appellate counsel; however, he did so only

in the argument section of several of other claims. Petitioner did not specifically present

ineffective assistance of counsel as the basis for either of his requests for leave to appeal,

nor did he indicate in the list of issues or headings of either of his appellate briefs any

ineffective assistance of counsel claims. 2

1

 See post-conviction motion filed as Petitioner’s Exhibit VI, also part of this Court’s Dkt. # 8-17. 

2

 See Application for Leave to Appeal to the Michigan Court of Appeals, filed as Petitioner’s

Exhibit IIX [sic], also this Court’s Dkt. # 8-22; Application for Leave to Appeal to the Michigan Supreme

6

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 6 of 23 Pg ID 1950
In order to properly exhaust a claim on state post-conviction review, a habeas

petitioner is required to present that claim in his or her post-conviction motion before the

state trial court and in his or her post-conviction appeal to the state’s appellate courts. See

Smith v. Gaetz, 565 F.3d 346, 352 (7th Cir. 2009). 

A number of cases have suggested that a habeas petitioner’s failure to present an

issue before a state trial court in a motion for post-conviction relief precludes a finding that

the issue has been exhausted for purposes of habeas review, even if that issue is later

presented on appeal to the state’s appellate courts from the denial of the post-conviction

motion. See e.g., Lindquist v. Gardner, 770 F. 2d 876, 878 (9th Cir. 1985)(Idaho state

prisoner did not exhaust his state remedies by presenting his claim to the state supreme

court in an original habeas proceeding, where prisoner had a post-conviction remedy

under the Uniform Post-Conviction Procedure Act which he should have pursued in the

court in which he was convicted and sentenced); Drake v. Wyrick, 640 F. 2d 912, 916 (8th

Cir. 1981)(petitioner failed to exhaust claim, where he did not assert claim in his postconviction motion, raising it for the first time on the appeal of the denial of his postconviction motion); See also Lesure v. Atchison, 891 F. Supp. 2d 920, 925-26 (N.D. Ill.

2012); Middlebrook v. Carroll, 470 F. Supp. 2d 411, 420 (D. Del. 2007); Geraci v.

Senkowski, 23 F. Supp. 2d 246, 265-266 (E.D.N.Y. 1998).

Numerous judges in this district have held that a habeas petitioner’s claims were

not properly exhausted when they were not presented in the petitioner’s post-conviction

motion for relief from judgment before the trial court and were raised only for the first time

Court, filed as Petitioner’s Exhibit IX, also this Court’s Dkt. # 8-23. 

7

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 7 of 23 Pg ID 1951
in the application for leave to appeal to the Michigan Court of Appeals. See Ceasar v.

Warren, No. 06–CV–15294, 2009 WL 1543327, * 4 (E.D. Mich. June 2, 2009); West v.

Jones, No. 06–CV–12057, 2008 WL 1902063, *11–12 (E.D. Mich. April 29, 2008); Dorch

v. Smith, No. 01–CV–71206–DT, 2002 WL 32598987, *19 (E.D. Mich. Sept.11, 2002); aff’d

105 Fed. Appx. 650 (6th Cir. 2004); Kincade v. Stegall, No. 99–CV–76350–DT; 2001 WL

279751, * 5 (E.D. Mich. Jan. 23, 2001).

Petitioner’s ineffective assistance of trial and appellate counsel claims are

unexhausted, because he failed to present these claims in his motion for relief from

judgment with the trial court. 

Compounding the problem is that although petitioner made several allegations of

ineffective assistance of counsel in his post-conviction appeals, he only did so in the

argument section of several other claims. Petitioner did not raise any ineffective

assistance of counsel claims in the statement of questions or headings in either postconviction appeal brief. M.C.R. 7.212(C)(5) requires a statement of the questions

involved, with each issue for appeal separately numbered. See Dando v. Yukins, 461 F.

3d 791, 797 (6th Cir. 2006). By failing to include any ineffective assistance of counsel

claims in the headings in his post-conviction appellate briefs, petitioner did not fairly

present these ineffective assistance of counsel claims to the state courts for purposes of

properly exhausting these claims. Wagner v. Smith, 581 F.3d 410, 415-16 (6th Cir. 2009). 

Unfortunately, petitioner no longer has any available state court remedies with

which to exhaust the claims. Under M.C.R. 6.502(G)(1), a criminal defendant in Michigan

is only permitted to file one post-conviction motion for relief from judgment. See Gadomski

8

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 8 of 23 Pg ID 1952
v. Renico, 258 F. App’x. 781, 783 (6th Cir. 2007); Hudson v. Martin, 68 F. Supp. 2d 798,

800 (E.D. Mich. 1999). Petitioner has no remaining state court remedies with which to

exhaust his ineffective assistance of counsel claims. If a prisoner fails to present his

claims to the state courts and he is now barred from pursuing relief there, his petition

should not be dismissed for lack of exhaustion because there are simply no remedies

available for him to exhaust. However, the prisoner will not be allowed to present claims

never before presented in the state courts unless he can show cause to excuse his failure

to present the claims in the state courts and actual prejudice to his defense at trial or on

appeal. Hannah v. Conley, 49 F.3d 1193, 1195-96 (6th Cir. 1995). A claim of actual

innocence will excuse this “cause and prejudice” requirement. Id. at 1196, n. 3.

Petitioner has failed to establish cause to excuse his default. While ineffective

assistance of appellate counsel might excuse petitioner’s failure to raise these claims on

his direct appeal, it does not excuse petitioner’s own failure to correctly exhaust these

claims in his post-conviction motion for relief from judgment. See Gadomski v. Renico, 258

F. App’x. at 784. 

Because petitioner has not demonstrated any cause for his procedural default, it

is unnecessary for the Court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527,

533 (1986); See also Alexander v. Smith, 342 F. Supp. 2d 677, 685 (E.D .Mich. 2004). 

Additionally, petitioner has not presented any new reliable evidence to support any

assertion of innocence which would allow this Court to consider his ineffective assistance

of counsel claims as a ground for a writ of habeas corpus in spite of the procedural default. 

Although petitioner claims that he was “framed” or “set up” for the crime, he has presented

no evidence to support such an allegation. Petitioner’s conclusory claim of actual

9

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 9 of 23 Pg ID 1953
innocence is insufficient to excuse the procedural default of his claims. See Ray v.

Simmons, 125 Fed. Appx. 943, 946 (10th Cir. 2005). Because petitioner has not presented

any new reliable evidence that he is innocent of this crime, a miscarriage of justice will not

occur if the Court declined to review the procedurally defaulted claims on the merits. See

Alexander, 342 F. Supp. 2d at 685. Petitioner is not entitled to relief on his first claim.

C. Claim # 2. Petitioner is not entitled to relief because the state court

refused to order that the identity of the confidential informant be disclosed. 

As part of his second claim, petitioner contends that he was deprived of his right

to confrontation and to a fair trial because the trial court denied his motion to order the

prosecutor to reveal the identity of the confidential informant. Detective Fletemier stated

in the affidavit in support of the search warrant that the confidential informant told him that

he had personally seen multiple ounces of cocaine and multiple pounds of marijuana

stored at petitioner’s house within the last 48 hours.

Petitioner raised this claim on his post-conviction motion for relief from judgment. 

The trial judge denied his claim on the ground that petitioner failed to establish that the

informant’s testimony would have been relevant or favorable to him or would have

exculpated him of the crime. The trial judge also ruled that Detective Fletemier’s testimony

involving the confidential informant did not violate the Confrontation Clause because it was

not offered for the truth of the matter asserted but to explain why the police organized the

surveillance and search of petitioner’s home. People v. Anger, No. 07-218338-FH, * 11-14

(Oakland County Circuit Court, December 13, 2012). 

Where the disclosure of a confidential informant’s identity is “relevant and helpful

to the defense of an accused, or is essential to a fair determination of a cause, the

10

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 10 of 23 Pg ID 1954
privilege [to keep the informant’s identity secret] must give way.” Roviaro v. United States,

353 U.S. 53, 60 (1957). The burden is on an individual who seeks disclose of the identity

of a confidential informant to show the need for such a disclosure. See Emmons v.

McLaughlin, 874 F. 2d 351, 357 (6th Cir. 1989). “Mere speculation as to the usefulness

of the informant’s testimony is insufficient to justify disclosure of his identity.” Id., at 358;

See also United States v. Sharp, 778 F.2d 1182, 1187 (6th Cir. 1985)(“mere conjecture or

supposition” will not support the disclosure of the informant’s identity). “Roviaro does not

require disclosure of an informant’s identity where...there is no indication that the informant

participated in or witnessed the offense charged.” Simpson v. Kreiger, 565 F.2d 390,

391-92 (6th Cir. 1977). 

In the present case, other than petitioner’s speculation that the informant was the

actual perpetrator or somehow participated in the drug transactions, petitioner failed to

show that the confidential informant’s identity was important to either the prosecution’s trial

strategy or his defense. See United States v. Smotherman, 564 F. App’x. 209, 213 (6th Cir.

2014). The only role the confidential informant played was supplying information to the

police that led to the search of petitioner’s home. Because there is no showing that the

informant was involved with the possession of sale of drugs or weapons out of petitioner’s

house or witnessed the raid, petitioner is not entitled to relief on his claim. See United

States v. Beals, 698 F.3d 248, 270 (6th Cir. 2012).

Petitioner’s related Confrontation Clause claim is without merit. Out of court

statements that are testimonial in nature are barred by the Sixth Amendment

Confrontation Clause unless the witness is unavailable and the defendant has had a prior

opportunity to cross-examine the witness, regardless of whether such statements are

11

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 11 of 23 Pg ID 1955
deemed reliable by the court. See Crawford v. Washington, 541 U.S. 36, 68-69 (2004). 

However, the Confrontation Clause “does not bar the use of testimonial statements for

purposes other than establishing the truth of the matter asserted.” Id., at 59, n. 9; See also

Tennessee v. Street, 471 U.S. 409, 414 (1985)(defendant’s rights under the Confrontation

Clause were not violated by introduction of an accomplice’s confession for the nonhearsay

purpose of rebutting defendant’s testimony that his own confession was coercively derived

from the accomplice’s statement). Indeed, “[I]n some circumstances, out of court

statements offered for the limited purpose of explaining why a government investigation

was undertaken have been determined not to be hearsay.” United States v. Gibbs, 506

F. 3d 479, 486-87 (6th Cir. 2007)(quoting United States v. Martin, 897 F. 2d 1368, 1371 (6th

Cir. 1990)). Evidence that is provided merely by way of background or is offered only to

explain how certain events came to pass or why law enforcement officers took the actions

that they did is not offered for the truth of the matter asserted, and thus cannot trigger a

Confrontation Clause violation. See U.S. v.Warman, 578 F. 3d 320, 346 (6th Cir.

2009)(quoting United States v. Cromer, 389 F.3d 662, 676 (6th Cir. 2004)).

The admission of Detective Fletemier’s testimony about the confidential informant

did not violate petitioner’s Sixth Amendment right of confrontation because it was not

offered to prove the truth of the matter asserted, but was only offered for the nonhearsay

purpose of helping the jury to understand the surveillance and the search of petitioner’s

home by the police. Because the testimony was offered as background evidence of the

police investigation and was not offered for its truth, petitioner’s confrontation rights were

12

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 12 of 23 Pg ID 1956
not violated.3

 Petitioner is not entitled to relief on this portion of his second claim.

D. Claim # 2. Petitioner is not entitled to habeas relief on his Fourth

Amendment claim.

As part of his second claim, petitioner argues that the search warrant was invalid

because it was based on false or incomplete information, and therefore, the trial court

should have suppressed the evidence.

Petitioner’s counsel filed a motion to suppress the evidence. An evidentiary hearing

was conducted on petitioner’s motion on September 10, 2008. The judge subsequently

issued an opinion and order denying the motion to suppress. People v. Anger, No. 07-

218338-FH (Oakland County Circuit Court, December 2, 2008). The Michigan Court of

Appeals on direct appeal rejected petitioner’s challenge to the legality of the search and

affirmed the denial of the motion to suppress. People v. Anger, 2011 WL 6186957, * 1-2.

A federal habeas review of a petitioner’s arrest or search by state police is barred

where the state has provided a full and fair opportunity to litigate an illegal arrest or a

search and seizure claim. Stone v. Powell, 428 U.S. 465, 494-95 (1976); Machacek v.

Hofbauer, 213 F. 3d 947, 952 (6th Cir. 2000). For such an opportunity to have existed, the

state must have provided, in the abstract, a mechanism by which the petitioner could raise

the claim, and presentation of the claim must not have been frustrated by a failure of that

mechanism. Riley v. Gray, 674 F. 2d 522, 526 (6th Cir. 1982). The relevant inquiry is

whether a habeas petitioner had an opportunity to litigate his claims, not whether he in fact

did so or even whether the Fourth Amendment claim was correctly decided. See Wynne

3

 The Court notes that no limiting instruction was requested or given.

13

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 13 of 23 Pg ID 1957
v. Renico, 279 F. Supp. 2d 866, 892 (E.D. Mich. 2003); rev’d on other grds 606 F.3d 867

(6th Cir. 2010). Indeed, under Stone, the correctness of a state court’s conclusions

regarding a Fourth Amendment claim “is simply irrelevant.” See Brown v. Berghuis, 638

F. Supp, 2d 795, 812 (E.D. Mich. 2009). “The courts that have considered the matter

‘have consistently held that an erroneous determination of a habeas petitioner’s Fourth

Amendment claim does not overcome the Stone v. Powell bar.’” Id. (quoting Gilmore v.

Marks, 799 F. 2d 51, 57 (3rd Cir. 1986)). Thus, an argument by a habeas petitioner that

is “directed solely at the correctness of the state court decision[on a Fourth Amendment

claim] ‘goes not to the fullness and fairness of his opportunity to litigate the claim[s], but

to the correctness of the state court resolution, an issue which Stone v. Powell makes

irrelevant.’” Brown, 638 F. Supp. 2d at 812-13 (quoting Siripongs v. Calderon, 35 F. 3d

1308, 1321 (9th Cir. 1994)). 

Detective Fletemier’s alleged perjury at the suppression hearing did not deprive

petitioner of a full and fair opportunity to litigate his Fourth Amendment claim. See Brown

v. Berghuis, 638 F. Supp. 2d at 811; See also Sneed v. Smith, 670 F. 2d 1348, 1356 (4th

Cir. 1982)(Stone rule “would of course be swallowed if impairment [of a full and fair

opportunity to litigate] could be shown simply by showing error - whether of fact or law -

in the state court proceeding. Sneed’s suggestion of perjury is merely a suggestion of

factual error.”). Moreover, the refusal to disclose the informant’s identity likewise did not

deny petitioner a full and fair opportunity to litigate his Fourth Amendment claims in the

state court. See Simpson v. Kreiger, 565 F.2d at 392. 

Petitioner is unable to raise a Fourth Amendment claim that the evidence in this

case was the product of an illegal search when he raised the factual basis for this claim

14

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 14 of 23 Pg ID 1958
in the state trial and appellate courts and the state courts thoroughly analyzed the facts

and applied the proper constitutional law in rejecting his claim. Machacek, 213 F. 3d at

952; Monroe, 197 F. Supp. 2d at 766. Petitioner is not entitled to relief on his claim. 

E. Claim # 3. Petitioner failed to show that he was incompetent to stand trial.

Petitioner in his third claim alleges that a head injury that he received during the

pendency of his case rendered him incompetent to stand trial. Petitioner further claims

that the trial court forced him against his will to take anti-psychotic medications. 4

An initial competency evaluation was performed on petitioner, at which time the first

forensic examiner, Dr. Dianne K. Sherman, recommended that petitioner be found

incompetent to stand trial due to memory problems, difficulties organizing thoughts,

retrieving words and speaking; vision problems; post-traumatic seizures; headaches;

hallucinations; and paranoia, all the result of a closed head injury that petitioner received

after being robbed and assaulted in Detroit on October 25, 2008. Significantly, Dr.

Sherman did suggest that any subsequent evaluations rule out malingering or

4

 Respondent contends that petitioner’s claim is procedurally defaulted pursuant to M.C.R.

6.508(D)(3), because he raised his claim for the first time in his post-conviction motion and failed to show

cause and prejudice for not raising his claim on his direct appeal. The problem with respondent’s

argument is that the trial judge, in denying the motion for relief from judgment, initially denied the claim

under M.C.R. 6.508(D)(2), on the ground that the claim had already been raised on petitioner’s direct

appeal in his application for leave to appeal before the Michigan Supreme Court, although the judge later

mentioned M.C.R. 6.508(D)(3) to deny the claim as well. The Sixth Circuit has observed that “there must

be unambiguous state-court reliance on a procedural default for it to block” a federal court from reviewing

a state court decision. Bowling v. Parker, 344 F. 3d 487, 498 (6th Cir. 2003)(citing Gall v. Parker, 231 F.3d

265, 321 (6th Cir. 2000)). In addition, “[F]ederal courts are not required to address a procedural-default

issue before deciding against the petitioner on the merits.” Hudson v. Jones, 351 F. 3d 212, 215 (6th

Cir.2003)(citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). “Judicial economy might counsel giving

the [other] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas

the procedural-bar issue involved complicated issues of state law.” Lambrix, 520 U.S. at 525. Given the

lack of clarity as to whether the claim was rejected under M.C.R. 6.508(D)(2) or M.C.R. 6.508(D)(3), the

Court will address the merits of the claim. 

15

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 15 of 23 Pg ID 1959
exaggeration of memory impairment or other cognitive disorders. 5

 The judge ordered that

petitioner was incompetent to stand trial. However, the judge further found that there was

“a substantial probability” that if petitioner was provided with treatment, he would regain

his competence to stand trial within the time limits established under M.C.L.A. 330.2034. 

Therefore, Petitioner was ordered committed to the Department of Mental Health for a

course of treatment. People v. Anger, No. 07-218338-FH (Oakland County Circuit Court,

July 29, 2009).

Petitioner was admitted to the Caro Center on August 12, 2009 and was

recommended as being restored to competency on November 30, 2009. A neurological

consult done on November 12, 2009 did not support a seizure disorder and there were no

visible brain lesions. Petiitoner was being treated with Seroquel, Celexa, Elavil, and

Xanax. His discharge diagnosis indicated that petitioner had major depression with

psychosis, a mental disorder due to a closed head injury with some visual, speech, and

motor impairment, as well as partial seizure disorder. However, the staff at Caro Center

upon petitioner’s discharge noted that his remote, recent, and immediate memory were

intact and his formal judgment was not impaired. 6

Dr. Hill evaluated petitioner on April 22, 2010 at the Forensic Center of Psychiatry. 

Dr. Hill noted that petitioner was oriented to time, place, and person, and his behaviors

“were organized and appropriate.” Petitioner was able to interact with Dr. Hill and could

speak in an “organized, logical, coherent, and chronological fashion,” even though some

5

 See Forensic Report from of Dr. Michelle Hill, dated April 22, 2010, p. 5. 

6

 Id., p. 5. 

16

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 16 of 23 Pg ID 1960
of his responses were latent and slow. 7

 Although petitioner complained of poor memory,

Dr. Hill noted there was no evidence of memory impairment, as petitioner was able to

provide a great deal of detailed information concerning the events surrounding his arrest

and could also recall information told to him two hours earlier. 8

 The tests for malingering,

in fact, suggested that petitioner “heavily exaggerated [his] neurological and memory

impairment.” 9

 Dr. Hill noted that in spite of his alleged amnesia, petitioner “was able to

refute accusations by police with rational arguments that did not seem bizarre or

delusional.” 10 Dr. Hill noted that petitioner was able to understand the criminal

proceedings against him in detail and his various rights. 11 Dr. Hill concluded that

petitioner was competent to stand trial and that his neurogical and memory impairments

appeared exaggerated and did not interfere with petitioner’s ability to discuss his case. 12

Petitioner was subsequently found competent to stand trial. Although a transcript

of the competency hearing was never transcribed, at sentencing, the judge, prosecutor,

and defense counsel all indicated that petitioner had been found competent to stand trial.

(Tr. 8/18/2010, pp. 14-15, 18-19). 

A defendant may not be put to trial unless he or she has a sufficient present ability

7

 Id., p. 3. 

8

 Id., pp. 3, 9-10. 

9

 Id., p. 9.

10 Id., p. 10. 

11 Id., pp. 10-11. 

12 Id., p. 12. 

17

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 17 of 23 Pg ID 1961
to consult with his or her lawyer with a reasonable degree of rational understanding and

a rational as well as a factual understanding of the proceedings against him. Cooper v.

Oklahoma, 517 U.S. 348, 354 (1996). A state may presume that a defendant is competent

to stand trial and require him to shoulder the burden of proving his incompetence by a

preponderance of the evidence. Id. at 355.

Petitioner’s basis for his mental incompetency is primarily his claim that he has little

or no memory of events surrounding his search and arrest due to the subsequent head

injury that he received. 

Amnesia about a crime “does not render a defendant per se incompetent to stand

trial.” United States v. Andrews, 469 F. 3d 1113, 1119 (7th Cir. 2006)(collecting cases). 

In order to determine whether a defendant’s amnesia renders him or her incompetent to

stand trial, courts should consider such factors as:

(1) Whether the defendant has any ability to participate in his defense;

(2) Whether the amnesia is temporary or permanent;

(3) Whether the crime and the defendant’s whereabouts at the time of the crime

can be reconstructed without the defendant’s testimony;

(4) Whether access to government files would aid in preparing the defense;

(5) The strength of the government’s case against the defendant.

Id. at 1119.

In the present case, the evidence of petitioner’s guilt to the charges was 

overwhelming, and petitioner failed to identify any “reasonable defenses” he was

precluded from raising due to his claimed amnesia. Andrews, 469 F.3d at 1121. Indeed,

a review of the psychiatric records that petitioner provided to the Court from the Training

and Treatment Innovations (TTI) where petitioner went for psychiatric treatment indicate

18

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 18 of 23 Pg ID 1962
that on several occasions, petitioner was able to recount the details of his arrest. 13 In a

report dated August 28, 2009, petitioner indicated that he believed the drug and firearms

charges may have been a “set up” by his ex-wife to “frame” petitioner in order to prevent

him from having visitation with their son. Petitioner stated that he was in the shower when

the police raided his home, a fact corroborated by police testimony at trial. A TTI report

from October 16, 2009 indicated that petitioner’s memory was good. Dr. Hill in her report

mentioned that petitioner was able to discuss the details of the offense with her in detail. 

Finally, at sentencing, petitioner, in spite of his memory problems, was able to bring up

details from his prior negligent homicide conviction and challenged its use to enhance his

sentence on the ground that it was only a misdemeanor and not a felony.(Tr. 8/18/2010,

pp. 19-21).

In the present case, there is no showing that petitioner was incompetent to stand

trial where there was no showing that his head injury and alleged resultant memory

problems prevented him from being able to assist in his defense or understand the

proceedings against him. See e.g. United States v. Denkins, 367 F.3d 537, 541, 547-48

(6th Cir. 2004).

As a related claim, petitioner contends that the trial judge forced him against his will

to take anti-psychotic medications in order to render him competent to stand trial.

In Riggins v. Nevada, 504 U.S. 127 (1992), the Supreme Court held that forcing a

defendant to be administered antipsychotic drugs during the course of trial over his

objection without a finding by the court that there were no less intrusive alternatives, that

13 The reports generally are found in Petitioner’s Exhibit XXXVII. 

19

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 19 of 23 Pg ID 1963
the medication was medically appropriate, and that it was essential for the sake of

defendant's safety or the safety of others, violates the defendant’s Fourteenth Amendment

right to due process. Id. at pp. 134-38.

Subsequently, in Sell v. United States, 539 U.S. 166, 179 (2003), the Supreme

Court held that anti-psychotic medication may involuntarily be administered to a defendant

for the purpose of rendering him or her competent to stand trial, if the government shows

that: (1) important government interests are at stake; (2) involuntary medication is

substantially likely to render the defendant competent to stand trial and substantially

unlikely to have side effects that will interfere significantly with the defendant's ability to

assist counsel at trial; (3) involuntary medication is necessary to further the government’s

interests, and less intrusive means are unlikely to achieve substantially the same results;

and (4) the administration of the drugs is medically appropriate. Id. at 180-82. 

Petitioner failed to show that he involuntarily took these medications. In a letter

sent to the trial judge, petitioner indicated that he was placed on anti-psychotic medication

at the Caro Center in the hope he would regain competency. Petitioner told the judge that

“he was eager to get out of the Caro Center, and finish the trial. So I complied with all

court and docter’s (sic) orders.” 14 The judge, on post-conviction review, denied

petitioner’s claim on the ground that petitioner agreed to take the medications. People v.

Anger, No. 07-218338-FH, * 15 (Oakland County Circuit Court, December 13, 2012). In

addition, this Court has reviewed petitioner’s psychiatric records from the Caro Center,

TTI, and the Forensic Center. Nowhere is there any indication that petitioner refused to

14 See Petitioner’s Exhibit L. 

20

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 20 of 23 Pg ID 1964
take his medications or objected to taking them. One TTI report, dated January 22, 2010,

indicates that petitioner “is familiar with psychotropic medications and has taken them

without incident in the past.” This suggests that petitioner had no objection to taking the

medications.

Petitioner’s situation is different from the defendant in Riggins because he actively

sought out psychiatric treatment and expressly consented to or did not affirmatively object

to taking the prescribed medications. See Benson v. Terhune, 304 F. 3d 874, 881-82 (9th

Cir. 2002); See also Basso v. Thaler, 359 Fed. Appx. 504, 507-08 (5th Cir. 2010). There

are no cases which hold “the voluntary administration of medication” violates a defendant’s

right to due process of law. Basso, 359 Fed. Appx. at 508. Moreover, it was not an

unreasonable application of Supreme Court precedent for the Michigan courts to rule that

petitioner knowingly and voluntarily agreed to accept these medications, because there

is no evidence from the record that the staff at the various treatment facilities forced

petitioner to take these medications against his will, petitioner made a free and deliberate

choice to take these medications, and the records establish that petitioner was capable

of thinking logically and expressing himself in a sufficient manner to refuse treatment or

ask for more information before he took these medications. Benson, 304 F. 3d at 882-83.

Petitioner is not entitled to relief on his third claim. 

F. Claim # 4. Petitioner’s pre-trial bail claim is mooted by his conviction.

In his fourth claim, petitioner argues that the trial judge revoked his pre-trial bail

without cause when the judge ordered a competency evaluation.

Petitioner’s conviction has rendered moot any constitutional claims regarding his

pre-trial bail. See U.S. v. Manthey, 92 Fed. Appx. 291, 297 (6th Cir. 2004)(citing Murphy

21

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 21 of 23 Pg ID 1965
v. Hunt, 455 U.S. 478, 481 (1982)(“Hunt’s claim to pretrial bail was moot once he was

convicted”)). Petitioner is not entitled to habeas relief on his fourth claim.

IV. Conclusion

The Court will deny the petition for writ of habeas corpus. 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 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.

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 also 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).

22

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 22 of 23 Pg ID 1966
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.

IT IS FURTHER ORDERED that leave to appeal in forma pauperis is DENIED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: October 21, 2015

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

and/or counsel of record on October 21, 2015, by electronic and/or ordinary mail.

s/Julie Owens 

Case Manager, (313) 234-5135

23

2:14-cv-14159-GER-MJH Doc # 12 Filed 10/21/15 Pg 23 of 23 Pg ID 1967