UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JILL DAY,

Petitioner,

v.

MILLICENT WARREN, 

Respondent. 

 /

Case Number: 2:14-CV-14778

HONORABLE NANCY G. EDMUNDS

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS

CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY IN PART

Petitioner Jill Day, currently in the custody of the Michigan Department of

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

through counsel. She challenges her convictions for assault with intent to commit murder

and felony firearm. 

The petition raises five claims: (i) insufficient evidence supports Petitioner’s

conviction for assault with intent to commit murder; (ii) the admission of irrelevant,

prejudicial evidence and irrelevant opinion testimony denied Petitioner her right to a fair

trial; (iii) the prosecutor committed misconduct by discussing facts not in evidence and

eliciting improper opinion testimony; (iv) Petitioner was denied her right to a fair and

impartial jury when the jury panel viewed her in restraints; and (v) defense counsel was

ineffective. For the reasons explained below, the Court denies the petition. The Court

grants a certificate of appealability in part.
I. Facts

The Michigan Court of Appeals provided this overview of the circumstances leading

to Petitioner’s convictions: 

The victim, Steven Podschwit, was shot at six times in his driveway while

trying to leave for work early one morning. Two bullets hit him in the chest

and arm. He testified that he witnessed a dark-colored minivan slowly

drive by after the shooting. Other witnesses also reported seeing a dark

blue minivan in the driveway of a house next to the victim’s home. The

police determined that defendant drove a dark blue Honda Odyssey minivan

and owned a .45 caliber handgun. However, the police could not locate the

handgun and defendant could not provide an explanation as to where it

could be. When the police searched defendant’s house they found targets

used for shooting practice; defendant had visited the shooting range a week

before the incident. Moreover, the police found a torn photograph of the

victim’s house and driveway in defendant’s house. The victim testified that

he was receiving blocked phone calls from someone prior to the incident. 

These phone calls were traced to a phone number for a prepaid cell phone

for which defendant had phone cards. The victim’s ex-wife also testified

that she received a phone call from a female inquiring about the victim’s

address and work location. The police were able to determine that this

phone call came from the same prepaid cell phone. The jury convicted

defendant of assault with intent to murder and felony-firearm.

People v. Day, No. 306104, 2012 WL 6604704 (Mich. Ct. App. Dec. 18, 2012). Also

relevant to the case is the relationship among several individuals: Steven Podschwit, Guy

Fisher (Guy), Nicole Fisher (Nicole), and the Petitioner. After being shot, Podschwit told

police that he thought Guy might be the shooter because Guy previously accused

Podschwit of having an affair with Guy’s wife, Nicole. ECF No. 4-6, Pg. ID 560-62. Guy

admitted to his wife Nicole that he had an extramarital affair with Petitioner. ECF No. 4-

7, Pg ID 713. Nicole and Guy Fisher owed Petitioner over $110,000, a debt that had

accumulated over a period of years. The Court addresses additional relevant testimony

2
below. 

II. Procedural History

Petitioner was convicted by a jury in St. Clair County Circuit Court of assault with

intent to commit murder and felony firearm. She was sentenced on August 19, 2011, to

15 to 50 years for the assault conviction, to be served consecutively to two years for the

felony-firearm conviction. Petitioner filed a motion for new trial on the ground that the

verdict was against the great weight of the evidence. The trial court denied the motion. 

(ECF No. 4-14). 

Petitioner filed an appeal of right in the Michigan Court of Appeals presenting the

following claims: (i) the verdict was against the great weight of the evidence and

insufficient evidence supported the convictions; (ii) the prosecutor was improperly

permitted to admit irrelevant, highly prejudicial evidence and to elicit opinion testimony;

(iii) prosecutor committed misconduct by discussing facts not in evidence and eliciting

improper opinion testimony; (iv) Petitioner was denied right to a fair and impartial jury

when the jury viewed her in restraints; and (v) ineffective assistance of counsel. The

Michigan Court of Appeals affirmed Petitioner’s convictions. People v. Day, No.

306104, 2012 WL 6604704 (Mich. Ct. App. Dec. 18, 2012). 

Petitioner filed an application for leave to appeal in the Michigan Supreme Court,

raising the same claims raised in the Michigan Court of Appeals. The application was

denied. People v. Day, 836 N.W.2d 688 (Mich. 2013). 

Petitioner then filed this petition for a writ of habeas corpus. She raises these

3
claims: 

I. The evidence is insufficient to sustain Petitioner Day’s conviction for

assault with the intent to commit murder and therefore it would be a denial

of due process and a denial of Ms. Day’s federal constitutional right to be

free from conviction in the absence of proof beyond a reasonable doubt to

allow Ms. Day’s conviction to stand. 

II. Petitioner Day was denied her due process right to a fair trial under the

federal constitution when the prosecutor was permitted to admit irrelevant,

but highly prejudicial evidence, as well as elicit irrelevant opinion

testimony regarding the evidence in an improper attempt to bolster the

state’s case.

III. Ms. Day was denied her due process right to a fair trial under the federal

constitution when the prosecutor engaged in severe outcome-determinative

misconduct by discussing facts not in evidence and repeatedly eliciting

improper opinion testimony.

IV. Petitioner was denied her federal constitutional right to a fair and impartial

jury where the jury panel impermissibly viewed her in restraints. 

V. Petitioner was denied the effective assistance of counsel guaranteed by the

federal constitution where her trial attorney, with no strategic purpose,

made several outcome-determinative errors. 

III. Standard

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

Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 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

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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, 405-406

(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 411. 

The AEDPA “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) (internal quotations omitted). 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) (quotation omitted). The Supreme Court

has emphasized “that even a strong case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. at 102. Pursuant to section 2254(d), “a habeas court

must determine what arguments or theories supported or . . . could have supported, the

5
state court’s decision; and then it must ask whether it is possible fairminded jurists could

disagree that those arguments or theories are inconsistent with the holding in a prior

decision” of the Supreme Court. Id. Although 28 U.S.C. § 2254(d), as amended by the

AEDPA, does not completely bar federal courts from re-litigating claims that have

previously been rejected in the state courts, a federal court may grant habeas relief only

“in cases where there is no possibility fairminded jurists could disagree that the state

court’s decision conflicts with” the Supreme Court’s precedents. Id. A “readiness to

attribute error [to a state court] is inconsistent with the presumption that state courts know

and follow the law.” Woodford v. Viscotti, 537 U.S. 19, 24 (2002). 

A state court’s factual determinations are presumed correct on federal habeas

review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of

correctness only with clear and convincing evidence. Id. Moreover, for claims that were

adjudicated on the merits in state court, habeas review is “limited to the record that was

before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

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IV. Discussion

A. Sufficiency of the Evidence (Claim I)

Petitioner claims that insufficient evidence was offered to prove beyond a

reasonable doubt that she is guilty of assault with intent to commit murder. 

“[T]he Due Process Clause protects the accused against conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). On direct review, review

of a sufficiency of the evidence challenge must focus on 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.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). 

“Two layers of deference apply to habeas claims challenging evidentiary

sufficiency.” McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010), citing Brown v.

Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009). First, the Court “must determine whether,

viewing the trial testimony and exhibits 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.” Brown, 567 F.3d at 205, citing Jackson, 443 U.S. at 319. Second, if

the Court were “to conclude that a rational trier of fact could not have found a petitioner

guilty beyond a reasonable doubt, on habeas review, [the Court] must still defer to the

state appellate court’s sufficiency determination as long as it is not unreasonable.” Id.

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Under Michigan law, the elements of assault with intent to commit murder are (1)

an assault, coupled with (2) specific intent to kill, (3) which, if successful, would make

the killing murder. People v. Taylor, 422 Mich. 554 (Mich. 1985); see Warren v. Smith,

161 F.3d 358, 361 (6th Cir. 1998). The intent to kill may be proven by inference from

circumstantial evidence. Warren v. Smith, 161 F.3d 358, 361 (6th Cir. 1998).

The Michigan Court of Appeals cited the correct legal standard and held that

sufficient evidence was presented to sustain Petitioner’s conviction:

The victim was shot at six times with a .45 caliber handgun, and a dark blue

minivan was seen near the scene. Defendant owned a .45 caliber handgun

and she drove a blue minivan. Police found targets used for shooting

practice at defendant’s house, and defendant had visited that shooting range

a week before the incident. The victim testified that he received blocked

phone calls from someone prior to the incident, which police discovered

were from a prepaid cell phone for which defendant had phone cards. 

Lastly, an intent to kill can be inferred from the use of a dangerous weapon.

See People v. Dumas, 454 Mich. 390, 403; 563 N.W.2d 31 (1997). There

was sufficient evidence from which a rational trier of fact could determine

beyond a reasonable doubt that defendant committed assault with intent to

murder.

Day, 2012 WL 6604704 at *2. 

Petitioner argues that the evidence was insufficient because no physical evidence

linked her to the crime; her .45 caliber handgun was never found and an expert witness in

tool mark and firearms could not link the casings found at the scene of the shooting to

casings found at Petitioner’s home. Petitioner also notes that eyewitness testimony about

the type of vehicle seen near the shooting was inconsistent and no physical evidence was

found in Petitioner’s vehicle, such as gunshot residue. Petitioner argues that the phone

8
evidence also did not support her guilt because, although Petitioner had prepaid phone

cards for the phone used to make calls to the victim, no showing was made that Petitioner

possessed the phone at the time the calls were made. Petitioner argues that much of the

remaining evidence could be given an innocuous explanation as easily as an inculpatory

one. 

Petitioner’s argument essentially asks the Court to reweigh the evidence and to

come to a different conclusion than that reached by the jury. This is not the Court’s role

on habeas review. The Court does not “rely simply upon [its] own personal conceptions

of what evidentiary showings would be sufficient to convince [the Court] of the

petitioner’s guilt.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). Instead, the

Court asks whether the Michigan Court of Appeals “was unreasonable in its conclusion

that a rational trier of fact could find [Petitioner] guilty beyond a reasonable doubt based

upon the evidence presented at trial.” Id. citing Knowles v. Mirzayance, 556 U.S. 111,

123 (2009) (“The question ‘is not whether a federal court believes the state court’s

determination ... was incorrect but whether that determination was unreasonable – a

substantially higher threshold.’”), quoting Schriro v. Landrigan, 550 U.S. 465, 473

(2007)). Further, “circumstantial evidence may support a conviction, and such evidence

need not remove every reasonable hypothesis except that of guilt.” Hill v. Mitchell, 842

F.3d 910, 934 (6th Cir. 2016) (internal quotation omitted). See also Gipson v. Sheldon,

659 Fed. App’x 871, 881 (6th Cir. 2016) (“[C]ircumstantial evidence ... is intrinsically no

9
different from testimonial evidence and that is sufficient as long as the jury is convinced

beyond a reasonable doubt.”) (internal quotation omitted). 

In addition to the evidence noted by the Michigan Court of Appeals, the jury also

heard evidence that an unidentified female called the victim’s place of employment and

his ex-wife in the days prior to the shooting attempting to locate the victim. Police

executed search warrants at Petitioner’s home and found, among other items, a phone

card with the word “Capac” written on it (the town where the victim’s home was located),

a torn up picture of the victim’s home and driveway, a black holster designed to be worn

concealed inside of a person’s pants, a trash bag containing a box for binoculars and a

license plate cover (supporting a finding of an attempt at covert surveillance), and a

receipt indicating the binoculars were purchased less than a week before the shooting. A

credit card statement located in Petitioner’s home revealed a purchase from Intelius, an

online search engine. Intelius’ records showed that the purchase was made to attempt to

find an address associated with Steven Podschwit’s phone number. 

“A reviewing court ‘faced with a record of historical facts that supports conflicting

inferences must presume – even if it does not affirmatively appear in the record – that the

trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that

resolution.’” McDaniel v. Brown, 558 U.S. 120, 133 (2010), quoting Jackson, 443 U.S. at

326. The evidence against Petitioner, though circumstantial, was sufficient for a

reasonable trier of fact to find the essential elements of Petitioner’s crime proven beyond

a reasonable doubt. It was not unreasonable for the state court to conclude that, weighing

10
all reasonable inferences in the State’s favor, there was legally sufficient evidence

presented to support Petitioner’s conviction. Accordingly, habeas relief is denied on this

claim. 

B. Admission of Evidence (Claim II)

In her second claim, Petitioner argues that her due process right to a fair trial was

violated by the admission of irrelevant, highly prejudicial evidence and irrelevant opinion

testimony regarding the evidence. 

Respondent argues that the portion of this claim addressing opinion evidence is

procedurally defaulted. “[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. In this case, the

Court finds that the interests of judicial economy are best served by addressing the merits

of Petitioner’s claims.

Petitioner argues that a great deal of irrelevant and highly prejudicial evidence was

improperly admitted and that its admission violated her right to a fair trial. One of the

pieces of evidence identified by Petitioner as most troublesome is a black hoodie seized

from her home. Petitioner also identifies the following additional evidence and testimony

as improperly admitted: 

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• A bullet fragment found near the scene of the crime;

• These items seized from Guy Fisher’s home: four laptop computers, a tire

gauge, a knife, and a samurai sword;

• Contents of photographs taken of Guy Fisher’s vehicles; 

• A notebook seized from the Petitioner’s home; 

• These items seized from Petitioner’s home: a receipt for 200 minutes from

Net Ten which was activated to a track phone bearing the number 205-305-

8885 on October 24, 2010, and a ledger which indicated that Guy and

Nicole Fisher owed Petitioner $117,000; 

• DNA and fingerprint testimony which, Petitioner argues, ultimately did not

link Petitioner in any way to the crime; 

• Testimony regarding suspicious activity near Guy Fisher’s home and Nicole

Fisher’s parents’ home in the days after the shooting; and

• Testimony that Petitioner received a traffic ticket near Guy Fisher’s home a

few weeks after the shooting.

Petitioner contends that this evidence was irrelevant and highly prejudicial and that

it confused the jury and obfuscated the fact that the prosecution lacked evidence to prove

she committed the crime. 

The standard for habeas relief for state court evidentiary rulings is “not easily

met.” Wilson v. Sheldon, — F.3d —. 2017 WL 4820300, *3 (6th Cir. Oct. 26, 2017). 

“[S]tate-court evidentiary rulings cannot rise to the level of due process violations unless

they ‘offend[ ] some principle of justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental.’” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.

2000), quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)). If an evidentiary ruling is

12
“especially egregious and ‘results in a denial of fundamental fairness, it may violate due

process and thus warrant habeas relief.’” Wilson, — F.3d at —, 2017 WL 4820300 at *3,

quoting Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). But the state retains “wide

latitude with regard to evidentiary matters under the Due Process Clause.” Id., citing

Seymour, 224 F.3d at 552. 

Here, the Michigan Court of Appeals founds no error in the trial court’s admission

of this testimony. The state court of appeals found that the evidence was relevant because

it “had some tendency to make the existence of a material fact more or less probable.” 

Day, 2012 WL 6604704 at *3. The record supports the Michigan Court of Appeals’

holding. First, regarding the hoodie sweatshirt seized from Petitioner’s home, Lori

Hackelberg lived near Steven Podschwit and was walking her dog at the time of the

shooting. She heard several gunshots and then saw someone wearing a dark shirt or

jacket running toward a dark-colored van. ECF No. 4-7, Pg. ID 655. Podschwit also

described the person as being a dark figure, although he did not specifically identify a

particular piece of clothing. Thus, it was reasonable for the trial court to admit testimony

that a dark-colored sweatshirt was seized from Petitioner’s home. Ultimately, the defense

was able to rebut the hoodie’s relevance because police failed to test it for any gunshot

residue. The testimony regarding the evidence recovered from Guy Fisher’s and

Petitioner’s houses was relevant to the course of the investigation. The testimony helped

to explain how the investigation turned from focusing on Guy Fisher as a suspect to

focusing on Petitioner. The ledger detailing money owed to Petitioner by Guy and Nicole

13
Fisher was relevant to potential motives for the shooting and to the complex relationship

among Guy, Nicole, and Petitioner. The evidence of a prepaid phone card was clearly

relevant to show Petitioner’s connection to the phone number from which the suspicious

calls seeking the victim’s location were made. The DNA and fingerprint evidence were

relevant to show the course of the investigation and its thoroughness. In short, in a case

resting upon circumstantial evidence, it was natural for the prosecutor to carefully set

forth for the jury the building blocks upon which the case against Petitioner was based. 

Certainly, some of the exchanges detailing the gathering and logging of evidence

were tedious and exhaustive. But the testimony explained the unfolding police

investigation and, under the “extremely limited” review of state evidentiary rulings on

habeas review, the Court finds no error implicating Petitioner’s right to due process in the

admission of this evidence. Giles v. Schotten, 449 F.3d 698, 704 (6th Cir. 2006). 

Petitioner also challenges the elicitation of opinion testimony from police officers

reflecting upon the value of the evidence collected. As an initial matter, Petitioner argues

that this issue should be reviewed de novo because, although the issue was properly

presented, the Michigan Court of Appeals failed to address the merits of the claim. 

Respondent argues that the claim is procedurally defaulted because the Michigan Court of

Appeals declined to address the merits on the ground that the issue was not presented in

accordance with state court rules. The Court need not decide this issue because even

under a de novo standard of review the claim fails. 

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Petitioner objects to the prosecutor’s occasional use of the phrase “why was that

important” when asking police witnesses about various pieces of evidence because,

Petitioner argues, the prosecutor was improperly eliciting opinion testimony. For

example, Petitioner objects to the following exchange between the prosecutor and police

sergeant James Spadafore regarding the black sweatshirt: 

Q: And did you continue searching in that closet area [in Petitioner’s home]?

A: I did.

Q: And did you locate anything else that was important for you in this

investigation and things that you were searching for?

A: Yeah. I found a piece of clothing, I think, like a black hoodie.

Q: Okay. And why was that important?

A: It was mentioned to me that they were looking for clothing, particularly

some type of black hoodie that might have been worn by the person they

were looking for.

Q: And when you found that hoodie, did you retrieve it or take it off a hanger

or anything of that nature? 

A: I believe I saw it hanging there. Looked at it briefly and then I let Detective

Patterson come and photograph it and take it.

Q: And so all that you did was locate it, pinpoint to an evidence technician and

say, I think this is what you are looking for?

A: Correct. 

(ECF No. 4-8, Pg. ID 912-13). 

She also objects to questioning of police lieutenant Matthew Paulus. Lieutenant

Paulus testified that when he searched the Fisher home he located paperwork related to a

15
Chrysler Town & Country minivan. The prosecution asked “why was that important to

the investigation?” Id. at 922. Lieutenant Paulas explained that a witness had observed a

minivan shortly after the shooting and the information was relevant on that basis. Id. The

prosecution also asked Lieutenant Paulas if he located anything in the garage area of

Petitioner’s home “that was important for you as it relates to this investigation.” Id. at

928. Lieutenant Paulas responded that he found “a bag of ashes with a box for a pair of

binoculars.” Id. at 929. 

Detective David Patterson testified that when searching Petitioner’s house he

found a “declaration of love for Guy Fisher.” Id. at 946. Detective Patterson testified

that this was of evidentiary value because he was trying to determine the nature of any

relationship between Petitioner and Guy Fisher. Id. The prosecution also asked

Detective Patterson if, when searching Petitioner’s vehicle, he found anything “that was

of importance for you in this investigation.” Id. at 969. Detective Patterson replied that

he found a map of St. Clair County with areas of roads highlighted. Id. The areas of road

highlighted “jumped out at” Detective Patterson because it was the location where Nicole

Fisher’s parents lived and where she had been staying for her safety. Id. at 971. 

Finally, the prosecution asked detective Colleen Titus whether anything she found

in a tote bag in Petitioner’s car was “important or of evidentiary value to you in this

investigation.” ECF No. 4-9, (tr. pg. 95). Detective Titus replied, “Yes, there were a new

16
ledger book and some other notation in another book that were being transferred into the

next pages.”1

 Id. 

In Cooper v. Sowders, 837 F.2d 284 (6th Cir.1988), the Sixth Circuit held that it

was fundamentally unfair and a violation of due process to permit a detective to testify as

an expert witness that all the evidence linked the petitioner, and no one else, to the crime. 

The Sixth Circuit concluded that “[t]he opinion-testimony had a direct influence on the

jury’s consideration of petitioner’s guilt or innocence.” Id. at 287. In contrast, in this

case, no witness was asked to give an opinion about Petitioner’s guilt or innocence. 

Instead, the officers were simply explaining the course of the investigation that resulted in

the charges against Petitioner. The particular phrasing used by the prosecutor in

questioning police about evidence gathered did not render the responses improper opinion

testimony. In addition, The jury was instructed to judge a police officer’s testimony by

the same standard as the testimony of any other witness. ECF No. 4-11, Pg. ID 1492. 

Petitioner was not denied a fair trial as a result of this testimony. 

1

 Petitioner cites an additional transcript page as containing the same type of

allegedly improper opinion evidence, Tr. IV at 88. The Court finds no questions or

responses on that transcript page which could be construed as falling within the type of

questions challenged by Petitioner. 

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C. Prosecutorial Misconduct Claim (Claim III)

Petitioner next seeks habeas relief on the ground that the prosecutor committed

flagrant misconduct which “was so pronounced and persistent that it permeated the entire

atmosphere of the trial” when she asked police witnesses why certain pieces of evidence

were relevant to their investigations. ECF No. 1, Pg. ID 62. Petitioner fails to show that

the prosecutor committed any misconduct and certainly none that would rise to the level

of a denial of due process.2

 

The “clearly established Federal law” relevant to a habeas court’s review of a

prosecutorial misconduct claim is the Supreme Court’s decision in Darden v. Wainwright,

477 U.S. 168, 181 (1986). Parker v. Matthews, 567 U.S. 37, —, 132 S. Ct. 2148, 2153,

(June 11, 2012). In Darden, the Supreme Court held that a “prosecutor’s improper

comments will be held to violate the Constitution only if they ‘so infected the trial with

unfairness as to make the resulting conviction a denial of due process.’” Id., quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). This Court must ask whether the

Michigan Court of Appeals’ decision denying Petitioner’s prosecutorial misconduct

claims “‘was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.’” 

Parker, 567 U.S. at —, 132 S. Ct. at 2155, quoting Harrington, 562 U.S. at 103. 

2

 Respondent argues that this claim and Petitioner’s ineffective assistance of

counsel claim are procedurally defaulted. The Court finds that the interests of judicial

economy are best-served by proceeding to the merits of these claims. See Lambrix, 520

U.S. at 525. 

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The Michigan Court of Appeals found no misconduct. Day, 2012 WL 6604704 at

*4. The state court held that the challenged testimony was relevant and therefore there

was no misconduct in the prosecutor’s eliciting that testimony. Id. The state court further

denied Petitioner’s claim that the cumulative impact of the prosecutor’s numerous

instances of misconduct denied her a fair trial because no errors were found. Id. As

discussed above, Petitioner has not shown any error in the admission of evidence or

testimony. Therefore, the Michigan Court of Appeals’ opinion rejecting Petitioner’s

claim was not contrary to, or an unreasonable application of, Darden. Habeas relief is

denied on this claim. 

D. Petitioner in Restraints (Claim IV)

Petitioner next claims that she was denied her right to a fair and impartial jury

because the jury panel impermissibly viewed her in restraints. She maintains that the

Michigan Court of Appeals’ opinion denying this claim is an unreasonable application of

the Supreme Court’s decision in Deck v. Missouri, 544 U.S. 622 (2005). 

During juror voir dire, defense counsel made the following remark:

[W]hen my one client came in court today, she came in here in the company

of deputies. Some of you in the hallway probably saw that she was

handcuffed and shackled. ... And typically, you are not supposed to see my

client in handcuffs but I realize some of you did and that’s why I’m

bringing it up now. 

ECF No. 4-6, Pg. ID 443.

The Michigan Court of Appeals denied this claim on two grounds. First, the state

court held that the cited portion of the record did not establish that any jurors actually

19
viewed Petitioner in restraints. Day, 2012 WL 6604704 at *5. Defense counsel stated

that the jurors “probably” saw Petitioner in handcuffs and shackles, but defense counsel’s

supposition was not confirmed either way. Id. Second, the Michigan Court of Appeals

found no error because even assuming that Petitioner was seen in restraints, she was

viewed while being transported to court. Id. 

In Deck v. Missouri, 544 U.S. 622, 629 (2005), the Supreme Court held that “the

Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the

jury absent a trial court determination, in the exercise of its discretion, that they are

justified by a state interest specific to a particular trial.” Deck, however, “concerned only

visible restraints at trial. The Supreme Court was careful to repeat this limitation

throughout its opinion.” Mendoza v. Berghuis, 544 F.3d 650, 654 (6th Cir. 2008). 

“Restraining a defendant in the courtroom, and restraining him during transport there, are

two very different things.” Id. at 655 citing United States v. Moreno, 933 F.2d 362, 368

(6th Cir.1991). “[I]t is reasonable for law enforcement officers to transport custodial

criminal defendants to and from courthouses across the country with restraints.... And

jurors may well expect criminal defendants – at least ones charged with the kind of

conduct at issue here [assault with intent to commit murder] – to be restrained during

transport to the courtroom.” Id. (internal quotation marks omitted). 

 The Supreme Court has not held that a defendant’s constitutional rights are

violated when jurors see a defendant shackled during transport to and from the courtroom. 

Therefore, the Michigan Court of Appeals’ decision is not contrary to or an unreasonable

20
application of clearly established Supreme Court precedent. 

E. Ineffective Assistance of Counsel

Finally, Petitioner argues that she was denied the effective assistance of counsel. 

Specifically, she alleges that counsel was ineffective for failing to object to: (i) multiple

instances of admission of irrelevant evidence; (b) multiple instances of prosecutorial

misconduct; and (iii) the jury having viewed Petitioner in restraints. 

An ineffective assistance of counsel claim has two components. Strickland v.

Washington, 466 U.S. 668 (1984). A petitioner must show that counsel’s performance

was deficient and that the deficiency prejudiced the defense. Id. at 687. To establish

deficient representation, a petitioner must demonstrate that counsel’s representation “fell

below an objective standard of reasonableness.” Id. at 688. In order to establish

prejudice, a petitioner must show that, but for the constitutionally deficient representation,

there is a “reasonable probability” that the outcome of the proceeding would have been

different. Id. at 694. 

The AEDPA “erects a formidable barrier to federal habeas relief for prisoners

whose claims have been adjudicated in state court.” Burt v. Titlow, — U.S. — , 134 S.

Ct. 10, 16 (2013). The standard for obtaining relief is “‘difficult to meet.’” White v.

Woodall, — U.S. —, 134 S. Ct. 1697, 1702 (2014), quoting Metrish v. Lancaster, 569

U.S. —, —, 133 S. Ct. 1781, 1786 (2013). In the context of an ineffective assistance of

counsel claim under Strickland, the standard is “all the more difficult” because “[t]he

standards created by Strickland and § 2254(d) are both highly deferential and when the

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two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal

citations and quotation marks omitted). “[T]he question is not whether counsel’s actions

were reasonable”; but whether “there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Id.

First, Petitioner argues that her defense attorney was ineffective in failing to object

to the admission of allegedly irrelevant evidence and to the claimed instances of

prosecutorial misconduct. The Michigan Court of Appeals found counsel was not

ineffective because the evidence was properly admitted and the prosecutor did not

commit misconduct. Day, 2012 WL 66604704 at *5. This Court agrees. The disputed

evidence was relevant to the investigation and the prosecutor’s conduct fell far short of

constituting misconduct. 

Petitioner also argues that her attorney was ineffective in failing to object when the

jurors saw her in shackles. The Michigan Court of Appeals held that, even assuming that

the jurors did see Petitioner in restraints, counsel was not ineffective in failing to object

because “‘the prohibition against shackling does not extend to safety precautions taken by

officers while transporting a defendant to and from the courtroom.’” Day, 2012 WL

6604704 at *6, quoting People v Horn, 279 Mich. App. 31, 37 (2008). Defense counsel

was aware that the jurors may have seen Petitioner in restraints. He asked the jurors

whether anyone would be prejudiced by knowing that Petitioner was in jail while

awaiting trial. ECF No. 4-6, Pg. ID 444. He advised jurors that in cases involving

serious charges bond is typically very high and defendants often are unable to post bond. 

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Id. at 443. Defense counsel asked whether any jurors felt that Petitioner was guilty

because she was unable to make bond and therefore remained in jail. Id. at 444. No juror

expressed an inability to be fair based upon Petitioner’s failure to post bond. Defense

counsel handled the situation reasonably. Because he was likely aware of case law

finding no error where a defendant is seen in restraints while being transported to and

from the courtroom, he did not object. He focused, instead, on the most important issue,

whether any juror was negatively impacted by the restraints. After determining that none

had, defense counsel reasonably proceeded with voir dire. Habeas relief is denied on this

claim. 

V. Certificate of Appealability

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

appealability. To obtain a certificate of appealability, Petitioner must make a substantial

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

this denial, Petitioner must show that reasonable jurists could debate whether 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). Courts must either issue a certificate of appealability indicating which

issues satisfy the required showing or provide reasons why such a certificate should not

issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of Appealability,

106 F.3d 1306, 1307 (6th Cir. 1997). 

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Here, jurists of reason could debate the Court’s holding with respect to the

sufficiency of the evidence claim. Therefore, the Court grants Petitioner a certificate of

appealability as to that issue. The Court finds that reasonable jurists would not debate the

Court’s conclusions with respect to the remaining claims and denies a certificate of

appealability as to those claims. 

VI. Conclusion

For the reasons stated above, the Court DENIES the petition for a writ of habeas

corpus. The Court GRANTS a certificate of appealability on Petitioner’s sufficiency of

the evidence claim and DENIES a certificate of appealability with respect to the

remaining claims. 

s/ Nancy G. Edmunds 

NANCY G. EDMUNDS

UNITED STATES DISTRICT JUDGE

Dated: 11/1/17 

CERTIFICATION

I hereby certify that this order was served upon parties and/or counsel of record

on this 1st day of November, 2017 by regular U.S. Mail and/or CM/ECF. 

s/ Carol J. Bethel 

Case Manager

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