UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DEON LAMONT TAYLOR, 

 Petitioner, 

 Case No. 15-11687 

v. 

 HON. MARK A. GOLDSMITH 

MARY BERGHUIS, 

 Respondent. 

__________________________________/ 

OPINION & ORDER 

(1) DENYING THE HABEAS PETITION (Dkt. 1), 

(2) DENYING A CERTIFICATE OF APPEALABILITY, 

AND (3) GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

 Michigan prisoner Deon Lamont Taylor (“Petitioner”) filed a pro se petition for writ of 

habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). The petition challenges Petitioner’s Wayne 

County, Michigan convictions for three counts of solicitation of murder, Mich. Comp. Laws § 

750.157b(2), and one count of conspiracy to commit first-degree murder, Mich. Comp. Laws § 

750.157a; Mich. Comp. Laws § 750.316(1)(a). Petitioner alleges as grounds for relief that: (i) he 

was denied a fair trial by testimony that he had pleaded guilty to criminal sexual conduct in a 

related case, (ii) the trial court erred by allowing a deputy sheriff to testify about the alleged coconspirator’s statements, (iii) the trial court abused its discretion by refusing to charge the jury on 

attempted solicitation of murder, and (iv) the evidence at trial was insufficient. For the reasons 

stated below, the Court denies the petition for writ of habeas corpus, denies a certificate of 

appealability, and grants leave to appeal in forma pauperis. 

I. BACKGROUND

 The state appellate court briefly summarized the pertinent facts as follows: 
2 

Defendant’s convictions arose out of his conspiracy and solicitation of the murders 

of two witnesses against him in a pending criminal sexual conduct case, as well as 

a family member of those witnesses. While he was incarcerated, defendant 

solicited one of his former associates, Carlas May, to effectuate the killings. 

Unbeknownst to defendant, May cooperated with the police and wore a recording 

device during one of his meetings with defendant. May also met with Kenisha 

Faison, defendant’s co-conspirator, and recorded two conversations with her. 

People v. Taylor, No. 313677, 2014 WL 1234150, at *1 (Mich. Ct. App. Mar. 25, 2014). 

 On October 4, 2012, a Wayne County Circuit Court jury found Petitioner guilty, as 

charged, of soliciting Carlas May (“May”) to kill Petitioner’s former girlfriend, his girlfriend’s 

twelve-year-old daughter, and his biological son. The jury also found Petitioner guilty of 

conspiring with Kenisha Faison (“Faison”) to kill his former girlfriend, his girlfriend’s daughter, 

and his son. On November 15, 2012, the trial court sentenced Petitioner to concurrent terms of 

life imprisonment with the possibility of parole for the conspiracy conviction and 450 months 

(thirty-seven and a half years) to seventy years for the solicitation convictions. Petitioner raised 

his habeas claims in an appeal of right, but the Michigan Court of Appeals affirmed his convictions, 

see id., and on July 29, 2014, the Michigan Supreme Court denied leave to appeal because it was 

not persuaded to review the issues. See People v. Taylor, 849 N.W.2d 379 (Mich. 2014). 

 On May 11, 2015, Petitioner filed his habeas petition. Respondent argues in an answer to 

the petition that Petitioner’s claims are procedurally defaulted, waived, or not cognizable on habeas 

review and meritless. Resp’t Answer in Opp’n to Pet. at i-iii, PageID.75-77 (Dkt. 7). 

II. STANDARD OF REVIEW

 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: 
3 

 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. 

28 U.S.C. § 2254(d). 

 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 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). Thus, 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). 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). The 
4 

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. Furthermore, pursuant to section 2254(d), “a 

habeas court must determine what arguments or theories supported or . . . could have supported, 

the 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. Habeas relief is not appropriate unless each ground that supported the 

state-court’s decision is examined and found to be unreasonable under the AEDPA. See Wetzel 

v. Lambert, 520 U.S. 520, 525 (2012). 

 “If this standard is difficult to meet, that is because it was meant to be.” Harrington, 562 

U.S. at 102. 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, it 

preserves the authority for a federal court to 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. Indeed, section 2254(d) “reflects the view that habeas corpus is 

a guard against extreme malfunctions in the state criminal justice systems, not a substitute for 

ordinary error correction through appeal.” Id. Thus, 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). Therefore, in order to obtain habeas relief in federal courts, 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. 

 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 
5 

clear and convincing evidence. Id.; Warren v. Smith, 161 F.3d 358, 360-361 (6th Cir. 1998). 

Moreover, habeas review is “limited to the record that was before the state court.” Cullen v. 

Pinholster, 563 U.S. 170, 181 (2011). 

 III. ANALYSIS

A. Testimony about Petitioner’s Guilty Plea

 Petitioner alleges that he was denied a fair trial and due process of law when Detective 

Sergeant Gary Wiegand testified that Petitioner had pleaded guilty in the underlying criminalsexual-conduct case. The trial court had previously ruled that the prosecution could elicit some 

testimony about the criminal-sexual-conduct case to show Petitioner’s motive and intent in the 

current case, but that it would be inappropriate to elicit testimony that Petitioner pleaded guilty to 

the criminal-sexual-conduct charges, withdrew his plea, then pleaded guilty a second time, and 

was convicted and sentenced. The court advised the attorneys to caution their witnesses not to say 

anything about Petitioner’s guilty plea, conviction, and sentence in the criminal-sexual-conduct 

case. 9/25/12 Trial Tr. at 12-14, PageID.274-276 (Dkt. 8-6). 

 Wiegand subsequently testified that, while he was attempting to verify information 

provided by May, he learned that Petitioner had already pleaded guilty to criminal sexual conduct. 

See 9/28/12 Trial Tr. at 212, PageID.836 (Dkt. 8-9). The trial court excused the jury immediately, 

and, in the jury’s absence, Wiegand apologized for his error. Although the trial court offered to 

read a limiting instruction to the jurors, defense counsel declined the offer on the basis that it would 

draw attention to Wiegand’s comment. Id. at 212-215, PageID.836-839. 

 Petitioner now claims that Wiegand’s testimony bolstered the prosecution’s argument that 

the criminal-sexual-conduct case was the motive for the solicitation of murder and conspiracy. 
6 

Petitioner also contends that Wiegand’s testimony portrayed him as a confessed sexual predator 

of children. See Brief in Support of Pet. at 16, PageID.32 (Dkt. 1). 

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

substantial rights” because Petitioner failed to request a mistrial or to specify the grounds for his 

objection at trial. The Court of Appeals went on to say that it was unlikely Petitioner suffered any 

significant prejudice from the comment because Wiegand’s reference to Petitioner’s guilty plea 

was brief. The Court of Appeals also stated that Petitioner waived any error when he refused the 

trial court’s offer to provide an immediate curative jury instruction and agreed that the trial court’s 

jury instruction after the close of the proofs was adequate. Taylor, 2014 WL 1234150, at *1. 

 1. Procedural Default 

 Respondent argues that Petitioner’s claim is procedurally defaulted because the Michigan 

Court of Appeals reviewed the claim for “plain error.” A procedural default is “a critical failure 

to comply with state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). Under the doctrine 

of procedural default, “a federal court will not review the merits of [a state prisoner’s] claims, 

including constitutional claims, that a state court declined to hear because the prisoner failed to 

abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). In this Circuit, 

“[a] habeas petitioner’s claim will be deemed procedurally defaulted if each of the 

following four factors is met: (1) the petitioner failed to comply with a state 

procedural rule; (2) the state courts enforced the rule; (3) the state procedural rule 

is an adequate and independent state ground for denying review of a federal 

constitutional claim; and (4) the petitioner has not shown cause and prejudice 

excusing the default.” [Jalowiec v. Bradshaw, 657 F.3d 293, 302 (6th Cir. 2011)]. 

To determine whether a state procedural rule was applied to bar a habeas claim, 

[courts] look “to the last reasoned state court decision disposing of the claim.” 

Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc). 

Henderson v. Palmer, 730 F.3d 554, 560 (6th Cir. 2013). 

 2. Application 
7 

 The state procedural rule in question here is Michigan’s contemporaneous-objection rule. 

This rule requires defendants in criminal cases to preserve their appellate claims by first moving 

for a mistrial on the same ground in the trial court, People v. Alter, 659 N.W.2d 667, 673-674 

(Mich. Ct. App. 2003), or by specifically objecting on the same ground in the trial court. People 

v. Carines, 597 N.W.2d 130, 137-139 (Mich. 1999); People v. Buie, 825 N.W.2d 361, 374 (Mich. 

Ct. App. 2012). 

 At Petitioner’s trial, it was the trial judge, not Petitioner, who interrupted Detective 

Wiegand mid-sentence when Wiegand mentioned Petitioner’s guilty plea. Petitioner subsequently 

failed to request a mistrial or to make a specific objection to Wiegand’s testimony, and he declined 

the trial court’s offer to read a cautionary instruction to the jury. See 9/28/12 Trial Tr. at 212-215, 

PageID.836-839. Thus, the first procedural-default factor, failure to comply with a state 

procedural rule, is satisfied. 

 The second procedural-default factor is enforcement of the state procedural rule. The 

Michigan Court of Appeals was the last state court to adjudicate Petitioner’s claim in a reasoned 

opinion, and it enforced the contemporaneous-objection rule by reviewing Petitioner’s claim for 

“plain error.” A state appellate court’s review of a claim for “plain error” constitutes enforcement 

of a state procedural rule. Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001) (citing Seymour v. 

Walker, 224 F.3d 542, 557 (6th Cir. 2000) (citing Paprocki v. Foltz, 869 F.2d 281, 284-285 (6th 

Cir. 1989)). Thus, the second factor is satisfied. 

 The third procedural-default factor is satisfied if the state procedural rule in question is an 

adequate and independent state ground for denying review of a federal constitutional claim. “The 

adequacy of a state procedural bar turns on whether it is firmly established and regularly followed; 

a state rule is independent if the state court actually relies on it to preclude a merits review.” Biros 
8 

v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005) (citing Abela v. Martin, 380 F.3d 915, 921 (6th Cir. 

2004)). “Michigan’s contemporaneous-objection rule is both a well-established and normally 

enforced procedural rule,” Taylor v. McKee, 649 F.3d 446, 451 (6th Cir. 2011), and the Michigan 

Court of Appeals relied on the rule to preclude full review of Petitioner’s claim. The third 

procedural-default factor is satisfied. 

 The fourth factor requires Petitioner to show “cause” for his failure to make the proper 

objection at trial and resulting prejudice. Petitioner has not advanced any argument in support of 

a finding of “cause and prejudice.” The Court, therefore, deems the “cause and prejudice” 

argument abandoned. Roberts v. Carter, 337 F.3d 609, 613 (6th Cir. 2003) (citing United States 

v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000)). 

 In the absence of “cause and prejudice,” a habeas petitioner may pursue a procedurally 

defaulted claim only if he can demonstrate that failure to consider his claim will result in a 

fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). “A 

fundamental miscarriage of justice results from the conviction of one who is ‘actually innocent.’” 

Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (citing Murray v. Carrier, 477 U.S. 478, 

496 (1986)). “To be credible, [a claim of actual innocence] requires [the] petitioner to support his 

allegations of constitutional error with new reliable evidence – whether it be exculpatory scientific 

evidence, trustworthy eyewitness accounts, or critical physical evidence – that was not presented 

at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). “A petitioner’s burden at the gateway stage 

is to demonstrate that more likely than not, in light of the new evidence . . . any reasonable juror 

would have reasonable doubt.” House v. Bell, 547 U.S. 518, 538 (2006). 

 Petitioner has not produced any new evidence that was not presented at trial, and the 

evidence against him was substantial. Consequently, a miscarriage of justice will not occur as a 
9 

result of the Court’s failure to address the substantive merits of Petitioner’s first claim. The claim 

is procedurally defaulted because all four factors constituting a procedural default have been 

satisfied. 

 3. Harmless Error 

 Even if Petitioner’s claim were not procedurally defaulted, Detective Wiegand’s testimony 

about Petitioner’s guilty plea was harmless error. The comment was brief, and it was not 

mentioned again during Petitioner’s five-day trial. 

 Furthermore, the jury was apprised of the fact that Petitioner had been accused of, or 

charged with, criminal sexual conduct involving his former girlfriend’s young daughter. See, e.g., 

9/28/12 Trial Tr. at 17, PageID.641 (the prosecutor’s opening statement about the allegations of 

criminal sexual conduct made by the twelve-year-old target of Petitioner’s current charges); id. at 

51, PageID.675 (the former girlfriend’s testimony that Petitioner went to jail on allegations that he 

sexually assaulted her twelve-year-old daughter); 10/2/12 Trial Tr. at 24-25, PageID.903-904 (Dkt. 

8-10) (Detective Wiegand’s testimony that Petitioner and Faison discussed how to convince the 

complaining witness in the criminal-sexual-conduct case to drop the charges); 10/3/12 Trial Tr. at 

55-57, 68, PageID.1006-1008, 1019 (Dkt. 8-11) (May’s testimony that Petitioner had said his 

former girlfriend was accusing him of molesting her and was trying to coerce her daughter into 

lying about him and that May later learned from Detective Wiegand that it was the daughter whom 

Petitioner had violated). 

 Additionally, the trial court charged the jurors that they could consider evidence of a crime 

for which Petitioner was not on trial only for limited purposes.1

 As examples of permissible uses 

 

1

 The first sentence of the trial court’s instruction on “other acts” evidence reads: “You have heard 

evidence that was introduced to show that the defendant committed a crime for which he is now 
10 

of the evidence, the court stated that the jurors could use the evidence when deciding whether the 

evidence showed that Petitioner had a reason to commit the crime, that he intended to cause murder 

to be committed, that he committed or helped to commit the crime, or that he acted purposefully. 

The court cautioned the jurors not to consider the evidence for any other purpose and not to 

conclude from the evidence that Petitioner was a bad person or likely to commit crimes. The court 

also stated that the jurors should not convict Petitioner because they thought he was guilty of other 

bad conduct. 10/4/12 Trial Tr. at 55-56, PageID.1185-1186 (Dkt. 8-12). 

 Jurors are presumed to follow a trial court’s jury instructions, Richardson v. Marsh, 481 

U.S. 200, 211 (1987), and the evidence against Petitioner was substantial. Therefore, the alleged 

constitutional error was harmless because it could not have had a “substantial and injurious effect 

or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) 

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). 

B. The Co-Conspirator’s Statements 

 1. Background

 Petitioner alleges next that the trial court erred by allowing deputy sheriff Jeffrey 

Budzynowski to testify about Faison’s statements to May during their meetings on February 20, 

2012. Faison was tried separately and did not testify at Petitioner’s trial. Budzynowski, 

nevertheless, was permitted to testify, over defense counsel’s objection, that Faison told May: (i) 

that she had talked to Petitioner and was aware of what was about to happen, (ii) that she was 

 

on trial.” 10/4/12 Trial Tr. at 55, PageID.1185 (Dkt. 8-12) (emphasis added). The word now 

probably was either a misstatement by the trial court or a clerical error made during preparation of 

the transcript. Given the context of the statement, the jury likely understood the trial court to say, 

“You have heard evidence that was introduced to show that the defendant committed a crime for 

which he is not on trial.” 
11 

“okay” with the plan, (iii) that the intended victims would be home, and (iv) that Petitioner’s 

former girlfriend slept in the basement of the residence. According to Budzynowski, Faison also 

provided May with the street address of the intended victims, and she offered to go to the intended 

victims’ house with May when he went there to kill the victims. Additionally, Faison agreed to 

do surveillance on the house, and she promised to provide May with keys to the house. She told 

May that he should get the job done fast and then get out of the house and that she would enter the 

house because she knew where the insurance documents were kept. She cautioned May not to go 

near Nine Mile Road because of a police station there, and she recommended that May tie up 

Petitioner’s former girlfriend because the woman was 6’3” tall and a kickboxer. 9/28/12 Trial Tr. 

at 151-159, PageID.775-783. Petitioner alleges that Budzynowski’s testimony about Faison’s 

statements to May was inadmissible hearsay and that the testimony violated his right to due process 

and his right to confront his accusers. See Brief in Support of Pet. at 22, PageID.38. 

 The state trial court ruled that there was sufficient proof independent of the conspiracy to 

admit the co-conspirator statements in evidence and that the statements were not hearsay under 

Michigan Rule of Evidence 801. 9/28/12 Trial Tr. at 149-150, PageID.773-774. The Michigan 

Court of Appeals likewise determined that Budzynowski’s testimony was admissible under the 

Michigan Rules of Evidence because there was sufficient evidence of the conspiracy independent 

of Faison’s statements to May. Taylor, 2014 WL 1234150, at *2. The Court of Appeals further 

concluded that the testimony did not violate Petitioner’s right of confrontation because the 

statements at issue were not testimonial and did not implicate the Confrontation Clause. Taylor, 

2014 WL 1234150, at *3. 

 2. Discussion
12 

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

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

v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). To the extent that any testimony violated 

Michigan’s rules of evidence, such errors are not cognizable on federal habeas review. Hall v. 

Vasbinder, 563 F.3d 222, 239 (6th Cir. 2009). “In conducting habeas review, a federal court is 

limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United 

States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). 

 One of Petitioner’s sub-claims alleges that the disputed testimony violated his 

constitutional right to due process of law. A state trial court’s evidentiary error can rise to the level 

of a federal constitutional claim warranting habeas corpus relief if the error was “so fundamentally 

unfair as to deprive the petitioner of due process under the Fourteenth Amendment.” McAdoo v. 

Elo, 365 F.3d 487, 494 (6th Cir. 2004) (citing McGuire, 502 U.S. at 69-70). But “states have wide 

latitude with regard to evidentiary matters under the Due Process Clause,” Wilson v. Sheldon, 874 

F.3d 470, 476 (6th Cir. 2017), and for the following reasons, the state courts’ rulings on 

Budzynowski’s testimony were not contrary to federal law. Consequently, the alleged evidentiary 

error in admitting Budzynowki’s testimony about the co-conspirator’s statements did not rise to 

the level of fundamental unfairness. 

 Petitioner alleges that Budzynowski’s testimony violated his right to confront Faison. The 

Sixth Amendment to the United States Constitution guarantees defendants in criminal cases “the 

right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. “The 

Amendment contemplates that a witness who makes testimonial statements admitted against a 

defendant will ordinarily be present at trial for cross-examination, and that if the witness is 

unavailable, [her] prior testimony will be introduced only if the defendant had a prior opportunity 
13 

to cross-examine [her].” Giles v. California, 554 U.S. 353, 358 (2008) (citing Crawford v. 

Washington, 541 U.S. 36, 68 (2004)). In other words, “[w]here testimonial evidence is at issue, . 

. . the Sixth Amendment demands what the common law required: unavailability and a prior 

opportunity for cross-examination.” Crawford, 541 U.S. at 68. 

 “The Confrontation Clause is more rigid than the hearsay rule in terms of exceptions, but 

it applies to testimonial statements only,” United States v. Reynolds, 684 F. App’x 510, 514 (6th 

Cir. 2017), and “statements made by a coconspirator ‘by their nature [are] not testimonial.’” 

United States v. Damra, 621 F.3d 474, 492 n.4 (6th Cir. 2010) (quoting Crawford, 541 U.S. at 51). 

Statements made unwittingly to a confidential informant and recorded by the government also are 

not testimonial. See Davis v. Washington, 547 U.S. 813, 825 (2006) (citing Bourjaily v. United 

States, 483 U.S. 171, 181-184 (1987), for the principle that statements made unwittingly to a 

Government informant are nontestimonial); see also United States v. Johnson, 581 F.3d 320, 325 

(6th Cir. 2009) (collecting cases which hold that statements made unwittingly to confidential 

informants and recorded by the government are not testimonial for Confrontation Clause 

purposes). 

 There was considerable evidence at Petitioner’s trial that Faison was his co-conspirator. In 

addition, it is clear from the testimony at trial that Faison did not know May was a confidential 

informant or that her statements to May were being recorded. Because she unwittingly made 

statements to May and because there was evidence that she conspired with both May and 

Petitioner, her statements to May were not testimonial, and Petitioner’s claim under the 

Confrontation Clause fails. 

 C. The Trial Court’s Denial of the Request for a Jury Instruction on Attempt
14 

 In his third habeas claim, Petitioner alleges that the trial court abused its discretion and 

violated his right to due process of law and a fair trial by refusing to instruct the jury on attempted 

solicitation of murder. See Brief in Support of Pet. at 30, PageID.46; see also 10/4/12 Trial Tr. at 

3-6, PageID.1132-1135. Although Petitioner asserts that there was evidentiary support for the 

instruction, the Michigan Court of Appeals disagreed and concluded on review of Petitioner’s 

claim that the trial court did not abuse its discretion by refusing to instruct the jury on attempt to 

solicit murder. Taylor, 2014 WL 1234150, at *4. 

 Not every deficiency in a trial court’s jury instructions rises to the level of a due process 

violation. Middleton v. McNeil, 541 U.S. 433, 437 (2004). Furthermore, the United States 

Supreme Court has not determined whether the failure to give jury instructions on lesser-included 

offenses in non-capital cases such as this one violates the right to due process. See Beck v. 

Alabama, 447 U.S. 625, 638 n.14 (1980) (stating that “[w]e need not and do not decide whether 

the Due Process Clause would require the giving of such instructions in a noncapital case”). Thus, 

a “failure to instruct on a lesser included offense in a noncapital case is not ‘such a fundamental 

defect as inherently results in a miscarriage of justice or an omission inconsistent with the 

rudimentary demands of fair procedure.’” Scott v. Elo, 302 F.3d 598, 606 (6th Cir. 2002) (quoting 

Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir. 1990) (en banc)). 

 Even if this case were deemed comparable to a capital case, a jury instruction on a lesserincluded offense is not required when the evidence does not support it. Campbell v. Coyle, 260 

F.3d 531, 541 (6th Cir. 2001) (citing Spaziano v. Florida, 468 U.S. 447, 454-457 (1984)). 

 Here, the evidence did not support a jury instruction on attempted solicitation of murder. 

As pointed out by the Michigan Court of Appeals, 
15 

[t]he record reveals no evidence that defendant only attempted to solicit the murder 

of the proposed victims. Rather, the only evidence presented was that defendant 

sought out May and gave him directions to the victims’ house and the means to 

obtain keys to the house. Defendant also gave May directions with regard to whom 

to kill first, discussed payment for the murders, and told May the best escape route 

for avoiding police officers. As soon as defendant asked May to commit the 

murders, the offense was complete. 

Taylor, 2014 WL 1234150, at *4. 

 Petitioner’s defense theory, moreover, was not that he merely attempted to solicit May. 

Instead, he argued that May was a professional scammer who engaged him in conversation for his 

own benefit, that is, to get out of jail. Petitioner also maintained that his discussions with May 

were mere “macho” jailhouse talk. 10/4/12 Trial Tr. at 31-35, 40-41, PageID.1160-1164, 1169-

1170. In other words, his defense was that he never intended for May to kill anyone, and, as the 

Michigan Court of Appeals pointed out on review of Petitioner’s claim, 

[a]ttempt requires a specific intent to do an act. People v. Jones, 443 Mich. 88, 100, 

504 N.W.2d 158 (1993). If defendant did not intend for May to murder anyone, he 

would not have been guilty of an attempted solicitation because he never would 

have intended for the solicitation to occur. See id. 

Taylor, 2014 WL 1234150, at *4. 

 The Michigan Court of Appeals reasonably concluded “that the evidence did not support 

an attempt instruction, and [that] the trial court did not abuse its discretion by declining to give the 

instruction.” Id. For the same reasons, this Court finds that Petitioner’s rights to due process and 

a fair trial were not violated by the lack of a jury instruction on attempt. Therefore, even if 

Petitioner’s claim were cognizable on habeas review, he has no right to habeas relief on his claim. 

D. The Sufficiency of the Evidence 

 In his fourth and final claim, Petitioner alleges that there was insufficient evidence at trial 

that he solicited murder or conspired to murder anyone and, therefore, the trial court should have 
16 

granted his motion for a directed verdict of acquittal. According to Petitioner, his conversations 

with May and Faison were “macho” talk, which reflected his frustration and anger with being 

wrongfully accused of criminal sexual conduct. Petitioner concedes that his goal may have been 

to dissuade the complaining witness in the criminal-sexual-conduct case from testifying, but he 

contends that recordings of his conversations with May and Faison failed to establish an intent to 

solicit a murder or a conspiracy to murder someone. Petitioner urges the Court to give little or no 

weight to Detective Wiegand’s testimony. Petitioner also contends that May manipulated him and 

Faison and created the illusion of a conspiracy for his own personal gain. See Brief in Support of 

Pet. at 35, 39-42, PageID.51, 55-58. The Michigan Court of Appeals disagreed with Petitioner 

and concluded that there was sufficient evidence to support Petitioner’s convictions. Taylor, 2014 

WL 1234150, at *5. 

 1. Clearly Established Federal Law

 The Due Process Clause of the United States Constitution “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). Following Winship, 

the critical inquiry on review of a challenge to the sufficiency of the evidence supporting a criminal 

conviction is 

whether the record evidence could reasonably support a finding of guilt 

beyond a reasonable doubt. But this inquiry does not require a court 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. This familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the testimony, 

to weigh the evidence, and to draw reasonable inferences from basic facts 

to ultimate facts. 
17 

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979) (internal citations and footnote omitted) 

(emphases in original). 

 The Supreme Court has “made clear that Jackson claims face a high bar in federal habeas 

proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 

566 U.S. 650, 651 (2012). First, it is the responsibility of the jury to decide what conclusions 

should be drawn from the evidence admitted at trial. Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2 

(2011). “And second, on habeas review, ‘a federal court may not overturn a state court decision 

rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with 

the state court. The federal court instead may do so only if the state court decision was ‘objectively 

unreasonable.’” Id. (quoting Cavazos, 565 U.S. at 2); see also Tanner v. Yukins, 867 F.3d 661, 

672 (6th Cir. 2017) (explaining that “two layers of deference apply [to a sufficiency-of-theevidence claim], one to the jury verdict, and one to the state appellate court”). 

 2. Solicitation to Commit Murder

 The Jackson standard “must be applied with explicit reference to the substantive elements 

of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16. Petitioner was 

charged with three counts of solicitation to commit murder. Under state law, the word “solicit” 

“means to offer to give, promise to give, or give any money, services, or anything of value, or to 

forgive or promise to forgive a debt or obligation.” Mich. Comp. Laws § 750.157b(1). 

Solicitation to commit murder is a specific intent crime that requires proof that the 

defendant intended that a murder would in fact be committed. People v. 

Vandelinder, 192 Mich. App. 447, 450, 481 N.W.2d 787 (1992). Solicitation to 

commit murder occurs when (1) the solicitor purposely seeks to have someone 

killed and (2) tries to engage someone to do the killing. Id. Solicitation is complete 

when the solicitation is made. Id. A contingency in the plan may affect whether 

the victim will be murdered, but does not change the solicitor’s intent that the victim 

be murdered. Id. at 450-451, 481 N.W.2d 787. Actual incitement is not necessary 

for conviction. People v. Salazar, 140 Mich. App. 137, 143, 362 N.W.2d 913 
18 

(1985) (a defendant who attempted to incite an undercover police officer to commit 

murder could not escape conviction merely because the officer would not actually 

kill someone). 

People v. Crawford, 591 N.W.2d 669, 673-674 (Mich. Ct. App. 1998). 

 The Michigan Court of Appeals stated in Petitioner’s case that “the prosecution presented 

sufficient evidence that defendant solicited May to kill the victims and that defendant entertained 

the requisite intent that murder would be committed.” Taylor, 2014 WL 1234150, at *5. In 

reaching this conclusion, the Court of Appeals pointed out that 

Defendant sought out May, asked him “can you handle this?” and discussed the 

killings with him approximately four or five times. After May initially tried to 

dissuade defendant from seeking to have the victims murdered, defendant persisted. 

Defendant offered May $120,000 for the killings, and discussed the manner in 

which he wanted May to kill the victims. Defendant also told May the layout of 

the victims’ home and which victim he should kill first. 

Id.; see also 9/28/12 Trial Tr. at 132-143, PageID.756-767 (Deputy Sheriff Budzynowski’s 

description of Petitioner’s conversations with May). 

 A rational trier of fact could have concluded from this evidence, taken in the light most 

favorable to the prosecution, that Petitioner wanted to have certain individuals killed and that he 

tried to convince May to commit the murders in return for a monetary reward. Petitioner’s conduct 

went beyond “macho” talk or a verbal wish that someone were dead so that his criminal-sexualconduct case would be dismissed. He made a specific offer of a reward for the killings, and he 

provided May with instructions on whom to kill and how May could accomplish the killings. 

 Although Petitioner challenges May’s credibility and maintained at trial that May was a 

scam artist, an assessment of a witness’s credibility generally is “beyond the scope of federal 

habeas review of sufficiency of evidence claims.” Matthews v. Abramajtys, 319 F.3d 780, 788 

(6th Cir. 2003). In sufficiency-of-the-evidence challenges, the Court does “not reweigh the 
19 

evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for that of the jury.” 

Tanner, 867 F.3d at 672. 

 Here, the Michigan Court of Appeals reasonably concluded that “the prosecution presented 

sufficient evidence that defendant purposefully sought to have the victims killed and that he tried 

to engage May to do the killing.” Taylor, 2014 WL 1234150, at *5. Because this conclusion was 

not contrary to, or an unreasonable application of, Jackson, Petitioner has no right to relief on the 

basis of his challenge to the sufficiency of the evidence supporting his solicitation-of-murder 

claim. 

 3. Conspiracy

 Petitioner also was convicted of conspiracy to commit murder. Under Michigan law, 

[c]riminal conspiracy is a specific intent crime which arises from a mutual 

agreement between two or more parties to do or accomplish a crime or unlawful 

act. People v. Atley, 392 Mich 298, 311; 220 NW2d 465 (1974). The gist of a 

criminal conspiracy is the specific, mutual agreement to perform the crime in 

question; the conspiracy statute provides punishment for the actual advance 

planning and agreement to perform the substantive criminal acts. Id. 

People v. Hammond, 466 N.W.2d 335, 337 (1991) (quoting People v. Gilbert, 455 N.W.2d 731, 

735 (1990)). 

 “All the requisite elements of the crime of conspiracy are met when the parties enter into 

the mutual agreement, and no overt acts necessarily must be established.” People v. Hamp, 312 

N.W.2d 175, 180 (1981). “To prove a conspiracy to commit murder, it must be established that 

each of the conspirators ha[d] the intent required for murder and, to establish that intent, there must 

be foreknowledge of that intent.” Id. 

[D]irect proof of the conspiracy is not essential; instead, proof may be derived from 

the circumstances, acts, and conduct of the parties. See, e.g., People v. Brynski, 347 

Mich. 599, 81 N.W.2d 374 (1957). Inferences may be made because such evidence 

sheds light on the coconspirators’ intentions. 
20 

People v. Justice, 562 N.W.2d 652, 659 (Mich. 1997) (footnote omitted). 

 The evidence in this case, as summarized by the Michigan Court of Appeals, established 

that 

Faison visited defendant in jail on several occasions, and during these visits, 

defendant and Faison discussed how they could have the criminal sexual conduct 

charges against defendant dismissed. During one conversation, defendant referred 

to an associate who would soon be released from incarceration. Subsequently, 

Faison met with May, who she believed was recently released from incarceration, 

and discussed the killings. On that same day, defendant and May discussed the 

killings. In their respective meetings with May, both Faison and defendant assured 

May that Faison was involved in the plot to kill the proposed victims. Additionally, 

Faison assisted May in the manner defendant said she would, as she provided May 

with a key to the proposed victims’ house, as well as directions to the house and 

instructions for committing the murders. 

Taylor, 2014 WL 1234150, at *5. 

 There was other evidence that Faison sent a letter to Petitioner while he was in jail for the 

criminal-sexual-conduct charges. In the letter, Faison wrote: 

I will never leave your side, ever. I’m going to have someone take care of 

[Petitioner’s former girlfriend]. I promise you that. She means nothing to me and 

she is a liar, sneaky and [doesn’t] deserve to be living. I’m just so outraged about 

everything. 

10/2/12 Trial Tr. at 48, PageID.927. 

 A rational trier of fact could have concluded from all the evidence taken in the light most 

favorable to the prosecution that Petitioner entered into an agreement with Faison to have the 

intended victims murdered. Thus, the evidence was sufficient to support Petitioner’s conspiracy 

conviction, and the state court’s decision was not contrary to, or an unreasonable application of, 

Jackson. Petitioner has no right to relief on the basis of his challenge to the sufficiency of the 

evidence supporting his conspiracy conviction. 

E. Certificate of Appealability and Leave to Proceed In Forma Pauperis on Appeal
21 

 Petitioner may not appeal the Court’s denial of his habeas petition unless a district or circuit 

judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). A 

certificate of appealability may issue “only if the applicant has made a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by 

demonstrating that jurists of reason could disagree with the district court’s resolution of his 

constitutional claims or that jurists could conclude the issues presented are adequate to deserve 

encouragement to proceed further.” Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 

U.S. 473, 484 (2000)). 

Where a district court has rejected the constitutional claims on the merits, the 

showing required to satisfy § 2253(c) is straightforward: The petitioner must 

demonstrate that reasonable jurists would find the district court’s assessment of the 

constitutional claims debatable or wrong. . . . When the district court denies a 

habeas petition on procedural grounds without reaching the prisoner’s underlying 

constitutional claim, a [certificate of appealability] should issue when the prisoner 

shows, at least, that jurists of reason would find it debatable whether the petition 

states a valid claim of the denial of a constitutional right and that jurists of reason 

would find it debatable whether the district court was correct in its procedural 

ruling. 

Slack, 529 U.S. at 484. 

 Reasonable jurists could not find it debatable whether the petition states a valid claim of 

the denial of a constitutional right or whether the Court was correct in its procedural ruling on 

Petitioner’s first claim. Reasonable jurists also could not find the Court’s assessment of 

Petitioner’s remaining claims debatable or wrong. Accordingly, the Court will deny a certificate 

of appealability. The Court, nevertheless, will allow Petitioner to proceed in forma pauperis on 

appeal because the Court granted him permission to proceed in forma pauperis in this Court (Dkt. 

4), and an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A). 

IV. CONCLUSION
22 

 For the reasons stated above, the Court denies the petition for writ of habeas corpus (Dkt. 

1), denies a certificate of appealability, and grants leave to proceed in forma pauperis on appeal. 

 SO ORDERED. 

Dated: July 16, 2018 s/Mark A. Goldsmith 

 Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any 

unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail 

addresses disclosed on the Notice of Electronic Filing on July 16, 2018. 

 s/Karri Sandusky 

 Case Manager