UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CHARLES INGRAM, 

 Petitioner, 

v. 

JOE BARRETT, 

 Respondent. 

 

CASE NO. 2:15-cv-11074 

HON. DAVID M. LAWSON

MAG. DAVID R. GRAND 

 

ANSWER IN OPPOSITION TO AMENDED 

PETITION FOR WRIT OF HABEAS CORPUS 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.125 Page 1 of 87
i 

TABLE OF CONTENTS 

Introduction ................................................................................................ 1

Statements in Compliance with Habeas Rule 5(b) ................................... 4

A. Statute of Limitations .............................................................. 4

1. Argument ........................................................................ 4

B. Exhaustion.............................................................................. 11

C. Procedural Default ................................................................. 11

D. Non-retroactivity Doctrine..................................................... 11

Statement of the Case .............................................................................. 12

A. Trial Facts .............................................................................. 12

B. Procedural History ................................................................. 17

Standard of Review Pursuant to AEDPA ................................................ 20

Argument .................................................................................................. 30

I. Under the highly deferential standards of Jackson v. 

Virginia and 28 U.S.C. § 2254(d), the state appellate court 

rejection of Ingram’s claim that the evidence in support of 

his convictions was insufficient was not objectively 

unreasonable. .................................................................................. 30

II. Ingram’s claim that his convictions were against the great 

weight of the evidence is not cognizable. ....................................... 39

III. The state appellate court decision affirming the trial court’s 

refusal to admit evidence of the victim’s prior sexual 

activities on the basis of the Michigan rape-shield law did 

not deprive Ingram of a fair trial where the only issue at 

trial was whether the sex between Ingram and the victim 

was consensual. ............................................................................... 42

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.126 Page 2 of 87
ii 

IV. A claim that one is actually innocent is not cognizable on 

habeas review and the state appellate court rejection of 

Ingram’s Napue claim was not objectively unreasonable 

where Ingram has not shown perjury occurred much less 

prosecutor knowledge of perjury..................................................... 47

V. The state appellate court rejection of Ingram’s claim that 

convicting him of CSC III and CSC IV violated double 

jeopardy rights was not objectively unreasonable where each 

crime contains an element the other does not. .............................. 53

VI.-VIII. Under the highly deferential standards of Strickland v. 

Washington and 28 U.S.C. § 2254(d), the state court rejection 

of Ingram’s claim that counsel was ineffective was not 

objectively unreasonable. ................................................................ 58

IX. Challenges to the scoring of state sentencing guidelines are 

not cognizable on habeas review..................................................... 68

X. Under the highly deferential standards of Strickland v. 

Washington and 28 U.S.C. § 2254(d), the state court rejection 

of Ingram’s claim that appellate counsel was ineffective was 

not objectively unreasonable because none of the omitted 

issues was reasonably likely to lead to a different result if 

raised on direct appeal. ................................................................... 71

Conclusion ................................................................................................. 78

Relief ......................................................................................................... 83

Certificate of Service ................................................................................ 84

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.127 Page 3 of 87
1 

INTRODUCTION 

On July 10, 2008, Petitioner Charles Ingram, who was in his late 

40s, restrained 17-year-old BJ and groped her breasts, touched her 

vaginal area over her clothes and then pulled her pants down and 

penetrated her vagina with his penis. 

As a result of a 4-day jury trial in Saginaw County held in late 

2011, Ingram was convicted of one count of third-degree criminal sexual 

conduct (CSC III), Mich. Comp. Laws § 750.520d(1)(b) (sexual 

penetration achieved via force or coercion), and two counts of fourthdegree criminal sexual conduct (CSC IV), Mich. Comp. Laws § 

750.520e(1)(b) (sexual contact achieved via force or coercion). 

The State now holds Ingram in custody in the Michigan 

Department of Corrections where he is serving a 7-15 year sentence for 

CSC III and 13 to 24 month sentences for his CSC IV convictions. 

Ingram commenced an action under 28 U.S.C. § 2254 by filing a 

petition with this Court in March of 2015. After a “stay and abey,” 

Ingram has returned to this Court and filed an amended petition on 

February 3, 2017, which raises the following ten claims: 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.128 Page 4 of 87
2 

I. There was insufficient evidence to justify a reasonable juror 

concluding that all elements of the crime of criminal sexual 

conduct in the third degree and fourth degree was 

established beyond a reasonable doubt and all the state 

courts demonstrated an unreasonable application of 

precedential federal law set forth in Jackson v. Virginia. 

II. Petitioner’s verdict was against the great weight of the 

evidence and the state courts demonstrated an unreasonable 

determination of the facts of the case. 

III. Petitioner’s rights to a fair trial were infringed upon by the 

improper denial of the motion in limine relative to the 

introduction of evidence of the victim’s prior sexual history 

with third parties and in particular her prior claims of 

pregnancy. 

IV. Petitioner’s conviction is a product of one being incarcerated 

whom is actually innocent [as] the acts that occurred 

Petitioner holds were consensual and that Petitioner did not 

have the malice intent or the mens rea of the act that he was 

convicted of. The prosecution failed to establish these 

specific acts of intent causing a miscarriage of justice also 

some testimony was a product of perjury and resulting in a 

Napue violation and one was convicted by the violation and 

denied a fair trial. 

V. Defendant’s convictions should be vacated and he should be 

granted a new trial because he was subjected to double 

jeopardy in violation of the Fifth Amendment of the United 

States Constitution, where he was subjected to multiple 

prosecutions for the same offense. 

VI. Defendant did not receive the effective assistance of trial 

counsel when counsel failed to object when the court gave a 

jury instruction that permitted the jury to find him guilty 

even if they were not in unanimous agreement on each 

charge. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.129 Page 5 of 87
3 

VII. Defendant did not receive the effective assistance of trial 

counsel when counsel failed to impeach [the] complainant 

with her preliminary examination testimony, when she 

testified at his trial, and when counsel failed to point out the 

discrepancies between complainant’s preliminary 

examination testimony and her trial testimony, where it 

came out at trial at her closing argument. 

VIII. Defendant did not receive the effective assistance of trial 

counsel when counsel failed to do a proper investigation and 

present facts contained in documents that negated [the] 

complainant’s version of events, and therefore, she should 

not have been believed. 

IX. The trial court improperly scored the offense variable 13 and 

prior record variable 7 making the guidelines incorrect in 

violation of Defendant’s Sixth and Fourteenth Amendment 

rights. 

X. Defendant did not receive the effective assistance of 

appellate counsel when counsel did not raise the issues he 

now raises. 

The fact that Ingram raises ten claims brings to mind a recent 

observation from the Sixth Circuit: “When a party comes to us with nine 

grounds for reversing the district court, that usually means there are 

none.” Fifth Third Mortgage v. Chicago Title Ins., 692 F.3d 507, 509 

(6th Cir. 2012). 

Ingram raised a claim in his motion for relief from judgment that 

Michigan’s Sex Offender Registration Act is unconstitutional as cruel 

and unusual punishment. Ingram did not include this claim in his 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.130 Page 6 of 87
4 

original or amended habeas petition. This claim is therefore now 

abandoned. See Sommer v. Davis, 317 F.3d 686, 691 (6th Cir. 2003) 

(holding that an issue is abandoned if a party does not present any 

argument respecting the issue in his brief). 

Should the Court interpret the amended petition to be raising any 

different claim, the State requests an opportunity to file a supplemental 

pleading. 

The State now answers the amended petition and requests that it 

be denied. 

STATEMENTS IN COMPLIANCE WITH HABEAS RULE 5(b) 

With respect to the bars that preclude habeas review, the State 

asserts the following in conformance with Habeas Rule 5(b): 

A. Statute of Limitations 

1. Argument 

The State asserts that consideration of claims IV, V, IX and X are 

barred because they were first raised after expiration of AEDPA’s 

statute of limitations. 

AEDPA provides that a “1-year period of limitation shall apply to 

an application for a writ of habeas corpus by a person in custody 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.131 Page 7 of 87
5 

pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). If a 

claim is not filed within the one-year statute of limitations, it must be 

dismissed. See Akrawi v. Booker, 572 F.3d 252, 260 (6th Cir. 2009). 

When this Court granted its “stay and abey” it stated that Ingram 

had filed his habeas petition with only 11 days remaining in the statute 

of limitations: 

The Michigan Supreme Court denied the petitioner’s 

application for leave to appeal on December 23, 2013. That 

decision became final on March 23, 2014, when the time 

during which the petitioner could have filed a petition for a 

writ of certiorari in the United States Supreme Court 

expired. The one-year limitations period commenced on the 

following day, March 24, 2014. See Bronaugh v. Ohio, 235 

F.3d 280, 284–85 (6th Cir. 2000) (holding that the last day 

on which a petitioner can file a petition for a writ of 

certiorari in the United States Supreme Court is not counted 

toward the one-year limitations period applicable to habeas 

corpus petitions). The petitioner filed the present petition on 

March 16, 2015, eleven months and twenty days after his 

conviction became final. 

Ingram v. Barrett, 2015 WL 1966470, at *3 (E.D. Mich. April 29, 

2015). 

This Court’s April 29, 2015, order further allowed Ingram to 

return to state court to exhaust a fourth claim of ineffective assistance 

of counsel. Id. 

Ingram’s motion for relief from judgment contained a claim that 

counsel had been ineffective but also included additional claims, current 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.132 Page 8 of 87
6 

claims: IV (actual innocence, Napue claim), claim V (double jeopardy), 

claim IX (misscoring of guidelines), and claim X (ineffective assistance 

of appellate counsel). 

It is the State’s position that consideration of claims IV, V, IX and 

X is barred because they were filed in state court after expiration of 

AEDPA’s limitations period. According to the Register of Actions these 

claims were first filed in state court as part of Ingram’s motion for relief 

from judgment on June 8, 2015. 

This Court’s April 29, 2015, stay and abey order noted that 

Ingram only had 11 days left before the limitations period would expire 

and Ingram filed claims IV, V, IX and X over five weeks after issuance 

of the stay and abey order. In other words, Ingram did not file claims 

IV, V, IX and X in state court within the 11-day window he had 

remaining before expiration of AEDPA’s limitations period. 

When the habeas statute of limitations has already expired, a 

properly filed motion for relief from judgment “does not reset the date 

from which the one-year statute of limitations begins to run.” Johnson 

v. Hendricks, 314 F.3d 159, 161–62 (3d Cir. 2002); Jiminez v. Rice, 276 

F.3d 478, 482 (9th Cir. 2001). This is because there is no remaining 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.133 Page 9 of 87
7 

period to be tolled. Smith v. Stegall, 141 F. Supp. 2d 779, 782–83 (E.D. 

Mich. 2001). A habeas petition filed outside the proscribed time period 

must be dismissed. See Isham v. Randle, 226 F.3d 691, 694–95 (6th Cir. 

2000) (dismissing case filed 13 days late). 

The fact that Ingram filed his habeas petition eleven months and 

twenty days after his conviction became final did not suspend the 

running of the one-year limitations period under 28 U.S.C. § 2244(d)(2). 

See Duncan v. Walker, 533 U.S. 167, 181–82 (2001). And, while the stay 

and abey order may have allowed Ingram to file an ineffective 

assistance of counsel claim in a motion for relief from judgment, it did 

not authorize Ingram to file any other additional claims. 

Thus, claims IV, V, IX and X were not timely filed unless they 

“relate back” to Ingram’s original petition. Under Federal Rule of Civil 

Procedure 15, an amended pleading “relates back” to the original 

pleading only if they are tied to the “same core of operative facts.” See 

Mayle v. Felix, 545 U.S. 644, 664 (2005). “An amended habeas petition . 

. . does not relate back (and thereby escape AEDPA’s one-year time 

limit) when it asserts a new ground for relief supported by facts that 

differ in both time and type from those the original pleading set forth.” 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.134 Page 10 of 87
8 

Id. at 650. As explained by the Supreme Court, if “claims asserted after 

the one-year period could be revived simply because they relate to the 

same trial, conviction, or sentence as a timely filed claim, AEDPA’s 

limitation period would have slim significance.” Id. at 662. The Mayle

Court cautioned not to read the “conduct, transaction, or occurrence” 

requirement, so broadly as to render meaningless the statute of 

limitations. Id. at 662–64. Turning to the facts of the case, the Court 

concluded that the petitioner’s untimely amended petition did not relate 

back to the timely original petition because the two petitions “targeted 

separate episodes”: the pretrial interrogation of the witness, and the 

petitioner’s own interrogation, which occurred “at a different time and 

place.” Id. at 660. 

Because claims IV, V, IX and X raised in the amended petition do 

not share a common core of operative facts with claims I, II, III raised in 

the original petition, claims IV, V, IX and X are barred by the one-year 

limitations period. See Pinchon v. Myers, 615 F. 3d 631, 643 (6th Cir. 

2010). See also Watkins v. Deangelo-Kipp, __F.3d __, 2017 WL 87019 

(6th Cir. Jan. 10, 2017). (The Watkins decision was originally released 

as an unpublished opinion filed on January 10, 2017. The Sixth Circuit 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.135 Page 11 of 87
9 

subsequently designated the opinion as one recommended for full-text 

publication). In Watkins the Sixth Circuit found that the petitioner’s 

amended petition did not relate back to his original petition. The Court 

said “Counsel’s conduct in investigating before trial and presenting a 

defense to the jury during trial is a distinct ‘episode’ from counsel’s 

conduct in not requesting that the judge order a fifth psychiatric 

evaluation during trial.” Id. at *4. 

AEDPA’s limitations period is not jurisdictional, so it may be 

tolled for equitable reasons. Holland v. Florida, 560 U.S. 631, 645–49 

(2010). A petitioner is entitled to equitable tolling only if he establishes 

“(1) that he has been pursuing his rights diligently, and (2) that some 

extraordinary circumstance stood in his way and prevented timely 

filing.” Id. at 649 (citation omitted). Equitable tolling is used 

“sparingly” by the federal courts. Robertson v. Simpson, 624 F.3d 781, 

784 (6th Cir. 2010). A petitioner has the burden of demonstrating 

entitlement to equitable tolling. Allen v. Yukins, 366 F.3d 396, 401 (6th 

Cir. 2004). “Typically, equitable tolling applies only when a litigant’s 

failure to meet a legally-mandated deadline unavoidably arose from 

circumstances beyond that litigant’s control.” See Jurado v. Burt, 337 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.136 Page 12 of 87
10 

F.3d 638, 642 (6th Cir. 2003). “Absent compelling equitable 

considerations, a court should not extend limitations by even a single 

day.” Graham–Humphreys v. Memphis Brooks Museum of Art, Inc., 209 

F.3d 552, 561 (6th Cir. 2000) (citation omitted). 

This Court should find that Ingram is not entitled to equitable 

tolling. Equitable tolling also should not apply because Ingram did not 

diligently pursue relief. See Jurado, 337 F.3d at 643; Morgan v. Money, 

2000 WL 178421 (6th Cir. Feb. 8, 2000) (holding that a petitioner must 

show that he exercised due diligence in pursuing § 2254 relief to 

support equitable tolling). The Sixth Circuit Court of Appeals has held 

that when a petitioner’s actions demonstrate a lack of diligence 

equitable tolling of the one-year limitations period is foreclosed. 

Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003). Nor has Ingram 

presented a credible claim of actual innocence in order to avoid 

application of the limitations period. See McQuiggin v. Perkins, 133 S. 

Ct. 1924, 1928 (2013); Souter v. Jones, 395 F.3d 577, 588–90 (6th Cir. 

2005). As the Court explained in McQuiggin, “tenable actual-innocence 

gateway pleas are rare.” 133 S. Ct. at 1928. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.137 Page 13 of 87
11 

Consequently, this Court should find that consideration of claims 

IV, V, IX and X, claims not mentioned in Ingram’s original habeas 

petition, is barred on account of the expiration of AEDPA’s limitations 

period. 

Nevertheless, because this Court may find it easier to deny relief 

on the merits, the State will briefly respond to the merits of these 

claims below. See Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010) 

(when an analysis of whether a claim is barred by the statute of 

limitations adds complexity to a case the court can cut to the merit). 

B. Exhaustion 

The State is not arguing that any of Ingram’s habeas claims are 

barred by the failure to exhaust a claim for which a state court remedy 

still exists. 

C. Procedural Default 

The State asserts that Ingram has procedurally defaulted claims 

VI, VII and VIII (ineffective assistance of trial counsel) as explained 

below. 

D. Non-retroactivity Doctrine 

The State is not arguing that any of Ingram’s habeas claims are 

barred by the non-retroactivity doctrine. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.138 Page 14 of 87
12 

STATEMENT OF THE CASE 

A. Trial Facts 

When this case was on direct appeal the Saginaw County 

Prosecutor’s Office filed the following statement of facts: 

The victim, seventeen-year-old [BJ], knew Defendant and 

considered him her uncle. (TT2 35, 36) Her father worked for 

Defendant who owned several properties. On occasion, she 

assisted her father with those properties and sometimes got 

paid. (TT2 37) On July 10, 2008, the victim needed some 

money to go to Michigan Adventures. (TT2 38-39) She 

decided to work for Defendant at his property on Reed 

Street. There, she picked up carpet tacks and painted. 

Eventually, Defendant told her he had some work for her in 

the basement. 

She accompanied him into the basement. (TT2 39) 

Defendant directed her to the back room which contained 

some cabinets. (TT2 40) Defendant grabbed her hands and 

placed them behind her back. (TT2 40, 41, 52) He then 

pushed her over a cabinet. (TT2 40, 42) Defendant squeezed 

her breasts and touched her vaginal area over her clothes. 

(TT2 41, 42) He pulled the victim’s pants down with force 

and inserted his penis into her vagina from behind. (TT2 40, 

42) Defendant said, “[Y]ou know you want this[.] [Y]ou’ve 

been wantin’ it. [D]on’t act like you don’t want it[.] [O]h, 

god.” (TT2 40, 43) The victim told Defendant no and was 

yelling for him to stop. (TT2 40, 53) Defendant ejaculated on 

her clothes. (TT2 42-43) 

Defendant stopped because he heard Vercie Cooper, the 

victim’s father’s girlfriend, knocking at the front door. (TT2 

43, 54) The victim got dressed and went outside. (TT2 43) 

Cooper saw the victim exit from the basement, followed by 

Defendant. (TT2 96, 107) The victim was moving fast to the 

point of almost knocking Cooper over. The victim looked 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.139 Page 15 of 87
13 

upset. (TT2 96) The victim headed directly for the front door. 

(TT2 97) The victim’s father arrived at the Reed Street home 

with his Uncle Willie. 

The victim was following Cooper everywhere Cooper went. 

From the victim’s behavior and from the look on her face, her 

father knew something was wrong. (TT2 75) Even Uncle 

Willie thought something was wrong with the victim. (TT2 

75-76) 

The victim told Cooper to take her home. (TT2 43, 75-76) 

During the drive home, the victim told Cooper what 

Defendant had done and told Cooper not to tell anyone, 

especially her dad because she was afraid he would be upset 

and angry at Defendant. (TT2 43, 71) The victim asked 

Cooper to take her to the hospital, but Cooper did not know 

if the victim could consent to hospital care. (TT2 58) When 

the victim arrived home, she immediately showered and 

stayed in her room for the rest of the day and did not eat. To 

her father, the victim was acting weird. (TT2 44, 76) 

Later in the evening, Defendant arrived at the victim’s house 

and watched two movies. (TT2 59, 60, 76-77, 88) Defendant 

usually did not watch television with them, and he never 

stayed too long. (TT2 60, 77, 100-101) During this time, the 

victim was very quiet. (TT2 77) She only stayed to watch one 

movie. (TT2 88, 101) During that movie, Defendant mostly 

stared at the victim. (TT2 90) Everywhere the victim went, 

Defendant was right behind her. (TT2 78) Finally, the victim 

allowed Cooper to tell her father. Shortly before midnight, 

Cooper and her father took her to the hospital. (TT2 44) 

Dr. McLean examined the victim. (TT2 112, 113) The victim 

was upset: tearful, crying, and breathing very rapidly. (TT2 

114) She told the doctor she was raped by a family friend 

named Ingram in his home. He grabbed her from behind and 

said, “I wanted this for a long time.” He held her arms back, 

pulled her pants down, and penetrated her vaginally from 

behind. McLean performed a physical exam and completed a 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.140 Page 16 of 87
14 

rape kit. (TT2 115) She found a bruise on the victim’s left 

arm. (TT2 116) 

Detective Fink interviewed the victim on July 16, 2008. (TT2 

122, 124) The victim gave him her clothing she was wearing 

during the rape. (TT2 45, 125) The clothing was taken to the 

crime laboratory. (TT2 125) The parties stipulated to the 

laboratory’s report that the DNA found in the semen from 

the victim’s pants positively matched Defendant’s DNA. 

(TT2 126; TT3 4-5) 

On July 17, Fink interviewed Defendant. (TT2 124) 

Defendant denied having sex with the victim at the Reed 

Street house. (TT2 127) He said he did not rape the victim. 

(TT2 129) He did not pay her for sex. (TT2 130) The victim 

was like a daughter to him. (TT2 129-130) Overall, 

Defendant denied 22 times that he had any sexual contact 

with the victim. (TT2 127-128) Fink asked him if the semen 

found on the victim’s clothes would be his or would match 

his DNA. (TT2 128) Defendant answered, “[N]one, none, no, 

sir.” (TT2 128-129) 

Defendant testified he had had consensual sex with the 

victim up to two months before the incident. (TT3 42-43) On 

the first occasion, he rubbed the victim’s vagina and paid her 

$15 when she was removing ingrown hairs from his face. 

(TT3 43-44, 46-47) A month later, the victim was again 

removing his ingrown hairs and allowed him to finger her, 

and for doing that, he paid her $10. (TT3 45) On the other 

hand, the victim never had sexual intercourse previously 

with Defendant, and she was never paid by Defendant to 

have sex with him. (TT2 46) 

She did not consent to have sex with Defendant on July 10, 

2008. (TT2 46-47) In the past, she picked ingrown hairs from 

Defendant’s face, but that did not evolve into sex. Also, she 

did not have sex with Defendant for $15. (TT2 67) 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.141 Page 17 of 87
15 

On July 10, the victim came over to do some work because 

she needed some money. (TT3 12, 14, 18) She was given by 

Defendant the task of scraping tile in the basement. (TT3 18) 

While in the basement, they had sex. (TT3 20) The victim 

unzipped his pants while he pulled down hers. She leaned 

over a counter. (TT3 21) 

She reached for his penis, and he inserted it into her vagina. 

(TT3 21-22) He ejaculated on the floor. The victim then 

placed his penis in her vagina a second time. He ejaculated 

on the floor again and put his penis in her vagina a third 

time. (TT3 22) The victim never resisted. (TT3 23) Later, he 

watched two movies with the victim and her father. (TT3 34, 

35) 

When Defendant was interviewed by Fink, Defendant was 

terrified and shocked. (TT3 40) He denied raping anyone and 

denied having sex with the victim from the terror he faced. 

(TT3 41) Defendant only told the detective what would have 

made the detective feel good, and he acknowledged he lied to 

the detective, believing that was his best course of action at 

getting a fair trial. (TT3 66, 67) (Brief at 1–5.) 

The Michigan Court of Appeals accurately summarized the facts 

adduced at trial as follows: 

Defendant’s convictions stem from the sexual assault of “BJ” 

in the basement of a home that defendant was renovating. 

BJ testified that her father worked for defendant and that 

she sometimes accompanied her father and was paid for 

work that she performed. According to BJ, defendant 

grabbed her hands and held them behind her back while he 

pulled her pants down, squeezed her breasts, and vaginally 

penetrated her with his penis. Defendant testified that the 

sexual encounter was consensual. 

*** 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.142 Page 18 of 87
16 

Here, BJ testified that defendant pushed her over and held 

her hands behind her during the assault. 

*** 

During a police interview, defendant denied having sexual 

intercourse with BJ, but he testified that he did engage in 

sexual intercourse with her, but that the intercourse was 

consensual. 

*** 

During questioning regarding defendant’s claim that he paid 

BJ for sexual intercourse, defendant testified that women 

usually paid him for sexual intercourse because he knows 

“how to treat a woman.” 

People v. Ingram, No. 309035, 2013 WL 3717793, at *1, 2 (Mich. Ct. 

App. July 16, 2013). 

This appellate court recitation of the facts is entitled to the 

presumption of correctness under § 2254(e)(1), and Ingram has not 

demonstrated through clear and convincing evidence that this summary 

is incorrect. 

The presumption of correctness extends to factual findings made 

by state appellate courts on the basis of their review of trial court 

records. Treesh v. Bagley, 612 F.3d 424, 430 n.1 (6th Cir. 2010);

Sumner v. Mata, 449 U.S. 539, 546–47 (1981). To be an unreasonable 

determination of the facts, the evidence must be “too powerful to 

conclude anything but” the contrary of that reached by the state court. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.143 Page 19 of 87
17 

Miller-El v. Dretke, 545 U.S. 231, 265 (2005). A federal court “may not 

characterize . . . state-court factual determinations as unreasonable 

merely because [it] would have reached a different conclusion in the 

first instance.” Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015) 

(quotation marks omitted). 

The State opposes any factual assertions made by Ingram that are 

not directly supported by—or consistent with—the state court record, 

because he has failed to overcome the presumption of factual 

correctness under 28 U.S.C. § 2254(e)(1) or meet the requirements of 28 

U.S.C. § 2254(e)(2). 

B. Procedural History 

Ingram was convicted of one count of CSC III and two counts of 

CSC IV. The trial court sentenced him to 7-15 years for CSC III and to 

concurrent terms of 13-24 months for the CSC IV convictions. 

Following his convictions and sentences, Ingram filed with the 

trial court a motion for directed verdict of acquittal and a motion for a 

new trial. The trial court denied the motions. People v. Ingram, No. 08-

031317-FH, Saginaw County Cir. Ct. Order (Oct. 3, 2012). 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.144 Page 20 of 87
18 

Ingram subsequently filed a claim of appeal in the Michigan Court 

of Appeals, which raised his first three habeas claims. 

The Michigan Court of Appeals affirmed Ingram’s convictions in 

an unpublished opinion. People v. Ingram, 2013 WL 3717793. 

Ingram subsequently filed an application for leave to appeal in the 

Michigan Supreme Court which raised the same three claims as in the 

Michigan Court of Appeals. The Michigan Supreme Court denied the 

application because it was not persuaded that the questions presented 

should be reviewed by the Court. People v. Ingram, 840 N.W.2d 336 

(Mich. 2013) (unpublished table decision). 

Ingram did not appeal to the United States Supreme Court. 

Rather, he filed a petition for habeas relief with this Court on March 20, 

2015, along with a motion to stay so Ingram could exhaust a claim that 

trial counsel had been ineffective. (Docs. # 1–2.) 

This Court entered an order staying the case so Ingram could 

return to state court and exhaust additional claims. (Doc. # 5); Ingram 

v. Barrett, 2015 WL 1966470 (E.D. Mich. April 29, 2015). 

Ingram returned to the trial court and filed a motion for relief 

from judgment, which contained habeas claims IV-X and a claim that 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.145 Page 21 of 87
19 

Michigan’s Sex Offender Registration Act is unconstitutional as cruel 

and unusual punishment. 

The trial court denied the motion for relief from judgment on the 

merits. People v. Ingram, No. 08-031317-FH, Saginaw County Cir. Ct. 

Order (Dec. 1, 2015). 

Ingram next filed an application for leave to appeal in the 

Michigan Court of Appeals. The Michigan Court of Appeals denied the 

application for leave to appeal because defendant failed to establish that 

the trial court erred in denying his motion for relief from judgment. 

People v. Ingram, No. 332098 Mich. Ct. App. Order (July 25, 2016). 

Ingram applied for leave to appeal this decision in the Michigan 

Supreme Court but was also denied relief under Mich. Ct. Rule 

6.508(D). People v. Ingram, 888 N.W.2d 97 (Mich. Jan. 5, 2017) 

(unpublished table decision). 

On February 3, 2017, Ingram returned to this Court with a motion 

to lift the stay and with an amended petition. (Docs. # 6–7.) This Court 

subsequently entered an order lifting the stay and requiring the State 

to respond to Ingram’s amended petition. (Doc. # 9.) 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.146 Page 22 of 87
20 

STANDARD OF REVIEW PURSUANT TO AEDPA 

Congress mandated the standards of review in federal habeas 

proceedings in 1996 in the Antiterrorism and Effective Death Penalty 

Act (AEDPA). Recognizing the foundational principle that “[s]tate 

courts are adequate forums for the vindication of federal rights,” 

“AEDPA erects a formidable barrier to federal habeas relief for 

prisoners whose claims have been adjudicated in state court.” Burt v. 

Titlow, 134 S. Ct. 10, 15, 16 (2013); 28 U.S.C. § 2254(d). 

Federal law permits a prisoner held “in custody pursuant to the 

judgment of a State court” to seek habeas relief “only on the ground that 

he is in custody in violation of the Constitution or laws or treaties of the 

United States.” 28 U.S.C. § 2254(a). Pursuant to § 2254, a federal 

court must deny habeas relief as to any claim that was adjudicated on 

the merits in state court unless the adjudication: 

(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. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.147 Page 23 of 87
21 

The burden of satisfying the standards set forth in § 2254 rests 

with the petitioner. Cullen v. Pinholster, 563 U.S. 170, 180 (2011). 

And, this standard in § 2254 is “intentionally difficult to meet.” Woods 

v. Donald, 135 S. Ct. 1372, 1376 (2015) (quotation marks omitted). 

With respect to § 2254(d)(1), a state court decision is “contrary to” 

federal law only “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.” Metrish v. Lancaster, 133 S. Ct. 

1781, 1786 n.2 (2013) (internal quotation marks and citation omitted). 

See Donald, 135 S. Ct. at 1377 (“Because none of our cases confront ‘the 

specific question presented by this case,’ the state court’s decision could 

not be ‘contrary to’ any holding from this Court.”). 

A state court decision involves an unreasonable application of 

clearly established Federal law pursuant to § 2254(d)(1) if “the statecourt decision identifies the correct governing legal principle in 

existence at the time,” but “unreasonably applies that principle to the 

facts of prisoner’s case.” Pinholster, 563 U.S. at 182 (internal quotation 

marks and citation omitted). “A federal court may not overrule a state 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.148 Page 24 of 87
22 

court for simply holding a view different from its own, when the 

precedent from this Court is, at best, ambiguous.” See, Mitchell v. 

Esparza, 540 U.S. 12, 17 (2003) (per curiam). Habeas “relief is 

available under § 2254(d)(1)’s unreasonable-application clause if, and 

only if, it is so obvious that a clearly established rule applies to a given 

set of facts that there could be no ‘fairminded disagreement’ on the 

question.” White v. Woodall, 134 S. Ct. 1697, 1706–07 (2014). Where 

“[n]o precedent of [the Supreme Court] clearly forecloses” a state court’s 

ruling, it simply cannot be an unreasonable application of Supreme 

Court precedent. Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016) (per 

curiam). A habeas petitioner cannot prevail as long as it is within the 

“realm of possibility” that fairminded jurists could find the state court 

decision to be reasonable. Etherton, 136 S. Ct. at 1152. 

AEDPA restricts the body of law a habeas court may consider. By 

its terms AEDPA limits the source of law to Supreme Court precedent 

interpreting the Constitution. 28 U.S.C. § 2254(d)(1). Thus, Supreme 

Court decisions not based on constitutional grounds, e.g., decisions 

based on the Court’s supervisory powers, are “off the table as far as § 

2254(d) is concerned.” Early v. Packer, 537 U.S. 3, 10 (2002). See, e.g., 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.149 Page 25 of 87
23 

Rushen v. Spain, 464 U.S. 114, 119 n.4 (1983), characterizing Shields v. 

United States, 273 U.S. 583 (1927), as resting on “non-constitutionally 

based rules of orderly trial procedure.” See also Buelas v. Wolfenbarger, 

580 F.3d 403, 407 (6th Cir. 2009) (noting that Castro v. United States, 

540 U.S. 375 (2003), was decided as a matter of the Supreme Court’s 

supervisory power over the lower federal courts, and is not binding on 

the state courts). 

Further, “[c]learly established Federal law for purposes of § 

2254(d)(1) includes only the holdings, as opposed to the dicta,” of the 

Supreme Court’s decisions. White v. Woodall, 134 S. Ct. 1697, 1702 

(2014) (internal quotations and citations omitted). See also United 

States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 

U.S. 439, 463, n.11 (1993) (emphasizing “the need to distinguish an 

opinion’s holding from its dicta”); Jama v. Immigration & Customs 

Enforcement, 543 U.S. 335, 352 (2005) (“Dictum settles nothing, even in 

the court that utters it.”). See further Texas v. Cobb, 532 U.S. 162, 169 

(2001) (“Constitutional rights are not defined by inferences from 

opinions which did not address the question at issue.”); Ross v. Petro, 

515 F.3d 653, 662 (6th Cir. 2008) (explaining that only those parts of a 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.150 Page 26 of 87
24 

Supreme Court decision that are “integral to the holding” constitute 

“clearly established” Supreme Court law for purposes of 28 U.S.C. § 

2254(d)). 

Moreover, “clearly established Federal law” does not include 

statements in plurality opinions. When the Supreme Court issues a 

plurality opinion, i.e., an opinion where no single rationale explaining 

the result enjoys the assent of five Justices, the “clearly established 

federal law” for purposes of § 2254(d) is the position “taken by those 

Members who concurred in the judgments on the narrowest grounds.” 

See Panetti v. Quarterman, 551 U.S. 930, 949 (2007), citing Marks v. 

United States, 430 U.S. 188, 193 (1977). 

Further under § 2254(d)(1), the relevant Supreme Court precedent 

includes only the decisions in existence “as of the time the state court 

renders its decision,” not the date of finality. Greene v. Fisher, 565 U.S. 

34, 38 (2011) (internal quotation marks and emphasis omitted); see also

Pinholster, 563 U.S. at 182 (“State-court decisions are measured against 

[the Supreme] Court’s precedents as of the time the state court renders 

its decision.”) (internal quotation marks omitted). 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.151 Page 27 of 87
25 

Under § 2254(d)(2), the “unreasonable determination” clause, “a 

state-court’s factual determination is not unreasonable merely because 

the federal habeas court would have reached a different conclusion in 

the first instance.” Titlow, 134 S. Ct. at 15 (internal quotation marks 

and citation omitted). If “[r]easonable minds reviewing the record 

might disagree about the finding in question, on habeas review that 

does not suffice to supersede the trial court’s . . . determination.” 

Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015). 

“[A]n unreasonable application of federal law is different from an 

incorrect application of federal law.” Renico v. Lett, 559 U.S. 766, 773 

(2010) (internal quotation marks and citations omitted). This means 

that “a federal habeas court may not issue the writ simply because that 

court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or 

incorrectly.” Id. Instead, the state court’s “application must be 

objectively unreasonable.” Id. That distinction creates “a substantially 

higher threshold” to obtain relief than de novo review. Id. “Under 

AEDPA, if the state-court decision was reasonable, it cannot be 

disturbed.” Hardy v. Cross, 565 U.S. 65, 72 (2011) (per curiam). 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.152 Page 28 of 87
26 

“It is not an unreasonable application of clearly established 

Federal law for a state court to decline to apply a specific legal rule that 

has not been squarely established by this Court.” Harrington v. 

Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and citation 

omitted). And federal court of appeals precedent cannot “refine or 

sharpen a general principle of Supreme Court jurisprudence into a 

specific legal rule that [the Supreme] Court has not announced.” 

Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (per curiam) (citation 

omitted); see also Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (providing that 

absent a decision by the Supreme Court addressing “the specific 

question presented by [a] case” a federal court cannot reject a state 

court’s assessment of claim). And, as the Supreme Court recently held, 

where no Supreme Court cases confront “the specific question 

presented” by the habeas petitioner, “the state court’s decision [cannot] 

be contrary to any holding from this Court.” Woods v. Donald, 135 S. 

Ct. 1372, 1377 (2015) (per curiam) (internal quotation marks and 

citation omitted). 

Further, the Supreme Court has specifically warned habeas courts 

that, “[b]y framing [Supreme Court] precedents at [too] high [a] level of 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.153 Page 29 of 87
27 

generality, [it] could transform even the most imaginative extension of 

existing case law into ‘clearly established Federal law, as determined by 

the Supreme Court.’ ” That “approach would defeat the substantial 

deference that AEDPA requires” be given to state-court decisions. 

Nevada v. Jackson, 133 S. Ct. 1990, 1994 (2013) (per curiam). 

The burden of providing a habeas petitioner with a new trial 

“should not be imposed unless each ground supporting the state court 

decision is examined and found to be unreasonable under AEDPA.” 

Wetzel v. Lambert, 565 U.S. 520, 525 (2012) (emphasis in original). 

Moreover, pursuant to § 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. Harrington, 

562 U.S. at 102. This standard protects against intrusion of federal 

habeas review upon “both the States’ sovereign power to punish 

offenders and their good-faith attempts to honor constitutional rights.” 

Id. at 103 (internal quotation marks and citation omitted). 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.154 Page 30 of 87
28 

A federal court must refrain from issuing a writ “so long as 

fairminded jurists could disagree on the correctness of the state court’s 

decision.” Harrington, 562 U.S. at 101 (internal quotation marks and 

citation omitted). To clear the § 2254(d) hurdle, a habeas petitioner 

“must show that the state court’s ruling on the claim being presented in 

federal court was so lacking in justification that there was an error well 

understood and comprehended in existing law beyond any possibility for 

fairminded disagreement.” Id. at 103. “If this standard is difficult to 

meet, that is because it was meant to be.” Id. at 102. 

The Supreme Court has also instructed habeas courts to apply a 

rebuttable presumption that a “federal claim was adjudicated on the 

merits” even “[w]hen a state court rejects a federal claim without 

expressly addressing that claim.” Johnson v. Williams, 133 S. Ct. 1088, 

1096 (2013). See also Kernan v. Hinojosa, 136 S. Ct. 1603, 1606 (2016) 

(per curiam) (“Containing no statement to the contrary, the Supreme 

Court of California’s summary denial of Hinojosa’s petition was 

therefore on the merits.”). “[S]tate-court decisions [must] be given the 

benefit of the doubt.” Pinholster, 563 U.S. at 181 (internal quotation 

marks and citation omitted). “Section 2254(d) reflects the view that 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.155 Page 31 of 87
29 

habeas corpus is a guard against extreme malfunction in the state 

criminal justice systems, not a substitute for ordinary error correction 

through appeal.” Harrington, 562 U.S. at 102–03 (internal quotation 

marks and citation omitted). “It bears repeating that even a strong case 

for relief does not mean the state court’s contrary conclusion was 

unreasonable.” Id. at 102 (citation omitted). 

Finally, the petitioner’s burden is made even heavier by the fact 

that a federal court is “limited to the record that was before the state 

court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 

181. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.156 Page 32 of 87
30 

ARGUMENT 

I. Under the highly deferential standards of Jackson v. 

Virginia and 28 U.S.C. § 2254(d), the state appellate court 

rejection of Ingram’s claim that the evidence in support of 

his convictions was insufficient was not objectively 

unreasonable. 

Ingram’s first habeas claim is that the evidence supporting his 

convictions was insufficient. 

The Michigan Court of Appeals considered and denied this claim 

on the merits by applying the correct constitutional standard in a 

manner that was not objectively unreasonable: 

Defendant’s convictions stem from the sexual assault of “BJ” 

in the basement of a home that defendant was renovating. 

BJ testified that her father worked for defendant and that 

she sometimes accompanied her father and was paid for 

work that she performed. According to BJ, defendant 

grabbed her hands and held them behind her back while he 

pulled her pants down, squeezed her breasts, and vaginally 

penetrated her with his penis. Defendant testified that the 

sexual encounter was consensual. 

Defendant first argues that the evidence was insufficient to 

establish that he used force or coercion to accomplish the 

sexual assault and that, accordingly, the trial court erred by 

denying his motion for a directed verdict of acquittal. We 

review de novo a challenge to the sufficiency of the evidence. 

People v. Ericksen, 288 Mich.App 192, 195; 793 NW2d 120 

(2010). We examine the evidence in a light most favorable to 

the prosecution and determine whether a rational trier of 

fact could have found that every essential element was 

proven beyond a reasonable doubt. Id. at 196. We apply the 

same standard in reviewing the trial court’s denial of a 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.157 Page 33 of 87
31 

motion for a directed verdict of acquittal. People v.

Hartuniewicz, 294 Mich.App 237, 242; 816 NW2d 442 (2011). 

Circumstantial evidence and reasonable inferences that may 

be drawn from that evidence can constitute sufficient proof 

of the elements of an offense. People v. Carines, 460 Mich. 

750, 757; 597 NW2d 130 (1999). The inferences to be drawn 

from the evidence and the weight to accord to those 

inferences are matters for the trier of fact to determine. 

People v. Hardiman, 466 Mich. 417, 428; 646 NW2d 158 

(2002). The trier of fact must also determine questions 

involving witness credibility. People v. Harrison, 283 

Mich.App 374, 378; 768 NW2d 98 (2009). 

The prosecution may establish the element of force or 

coercion by showing that the defendant overcame the victim 

“through the actual application of physical force or physical 

violence.” MCL 750.520b(1)(f)(i); MCL 750.520e(1)(b)(i); see 

also MCL 750.520d(1)(b). “[T]he prohibited ‘force’ 

encompasses the use of force against a victim to either 

induce the victim to submit to sexual penetration or to seize 

control of the victim in a manner to facilitate the 

accomplishment of sexual penetration without regard to the 

victim’s wishes.” People v. Carlson, 466 Mich. 130, 140; 644 

NW2d 704 (2002). 

Here, BJ testified that defendant pushed her over and held 

her hands behind her during the assault. Defendant 

contends that the assault could not have occurred as BJ 

described because he “did not have enough available hands” 

to restrain BJ while forcibly touching her and removing her 

clothes as she maintained. Thus, in essence, defendant 

contends that BJ’s version of events is “patently incredible or 

defies physical realities.” People v. Lemmon, 456 Mich. 625, 

643; 576 NW2d 129 (1998) (quotation marks and citation 

omitted). Defendant also argues that, considering the size of 

the house, someone would have heard BJ scream as she 

claimed she did. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.158 Page 34 of 87
32 

Nothing about BJ’s description of the attack can be 

characterized as “patently incredible” or contrary to 

“physical realities.” Defense counsel challenged BJ’s 

description of the assault, and she continued to maintain 

that defendant restrained her while at the same time 

engaging in sexual contact and sexual penetration with her. 

During a police interview, defendant denied having sexual 

intercourse with BJ, but he testified that he did engage in 

sexual intercourse with her, but that the intercourse was 

consensual. It was ultimately for the jury to determine 

whose testimony to believe, and we will not interfere with 

the jury’s role in assessing witness credibility. Harrison, 283 

Mich.App at 378. Moreover, a victim’s testimony alone is 

sufficient to establish criminal sexual conduct, and such 

testimony need not be corroborated. MCL 750.520h; People v. 

Phelps, 288 Mich.App 123, 132; 791 NW2d 732 (2010). 

Accordingly, the evidence was sufficient to support 

defendant’s convictions, and the trial court did not err by 

denying defendant’s motion for a directed verdict of 

acquittal. 

People v. Ingram, 2013 WL 3717793, at *1–2. 

This merits adjudication neither contradicts nor unreasonably 

applies Supreme Court case law. 

Clearly established federal law 

 The “clearly established Federal law” at issue when a petitioner 

asserts the evidence was insufficient is Jackson v. Virginia, 443 U.S. 

307, 318 (1979). See Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) 

(per curiam) (Jackson applies to sufficiency-of-the-evidence claims on 

habeas review under § 2254(d)). 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.159 Page 35 of 87
33 

 On direct review the critical inquiry on review of the sufficiency of 

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

evidence could reasonably support a finding of guilt beyond a 

reasonable doubt.” Jackson, 443 U.S. at 318. Due process requires that 

“each element of a crime be proved to the jury beyond a reasonable 

doubt.” Alleyne v. United States, 133 S. Ct. 2151, 2156 (2013). The 

Jackson inquiry, however, does not require a court to “ask itself 

whether it believes 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. Jackson, 443 U.S. at 318–19 

(internal citation and footnote omitted) (emphasis in original). The 

Supreme Court recently characterized the Jackson standard as 

requiring a defendant to show that the jury’s verdict “was so 

insupportable as to fall below the threshold of bare rationality.” 

Coleman, 132 S. Ct. at 2065. Even at the first level of deference, the 

Jackson standard is so demanding that “[a] defendant who challenges 

the sufficiency of the evidence to sustain his conviction faces a nearly 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.160 Page 36 of 87
34 

insurmountable hurdle.” Davis v. Lafler, 658 F.3d 525, 534 (6th Cir. 

2011) (en banc). 

When a federal habeas petition challenges the sufficiency of the 

evidence to support a state-court conviction, AEDPA establishes a 

standard that is “twice-deferential.” Parker v. Matthews, 132 S. Ct. 

2148, 2152 (2012). Accord Nali v. Phillips, 681 F.3d 837, 841 (6th Cir. 

2012) (explaining that the Jackson standard “requires deference to the 

jury’s verdict and to the state court’s review of that verdict”). This 

twice-deferential standard “does not permit a habeas court to engage in 

a fine-grained factual parsing.” Coleman, 132 S. Ct. at 2064. 

Under AEDPA, challenges to the sufficiency of the evidence must 

survive “two layers of deference to groups who might view facts 

differently”—the factfinder at trial and the state court on appellate 

review—than a reviewing court on habeas review. Brown v. Konteh, 

567 F.3d 191, 205 (6th Cir. 2009). Even if a federal court finds that no 

rational jury could have convicted the defendant, the habeas court must 

“still defer to the state appellate court’s sufficiency determination as 

long as it is not unreasonable.” Id. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.161 Page 37 of 87
35 

Finally, on habeas review, a federal court does not reweigh the 

evidence or reassess the credibility of the witnesses whose demeanor 

was observed at trial. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). 

“It is the province of the factfinder ... to weigh the probative value of the 

evidence and resolve any conflicts in the testimony.” Neal v. Morris, 

972 F.2d 675, 679 (6th Cir. 1992). 

Discussion 

This claim fails when it is viewed through the doubly deferential 

lens of Jackson and AEDPA. The Michigan Court of Appeals carefully 

reviewed the evidence and reasonably determined that the prosecution 

presented sufficient evidence of CSC III (sexual penetration achieved 

via force or coercion) and CSC IV (sexual contact achieved using force or 

coercion). 

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, and “through the framework of 28 

U.S.C. § 2254(d).” Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). 

Mich. Comp. Laws § 750.520d(1)(b) criminalizes sexual 

penetration achieved via “force or coercion.” Likewise Mich. Comp. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.162 Page 38 of 87
36 

Laws § 750.520e(1)(b) criminalizes sexual contact achieved via “force or 

coercion.” 

According to Michigan law “force or coercion” includes, but is not 

limited to, any of the following circumstances: 

(i) When the actor overcomes the victim through the actual 

application of physical force or physical violence. 

(ii) When the actor coerces the victim to submit by 

threatening to use force or violence on the victim, and the 

victim believes that the actor has the present ability to 

execute these threats. 

(iii) When the actor coerces the victim to submit by 

threatening to retaliate in the future against the victim, or 

any other person, and the victim believes that the actor has 

the ability to execute this threat. As used in this subdivision, 

“to retaliate” includes threats of physical punishment, 

kidnapping, or extortion. 

(iv) When the actor engages in the medical treatment or 

examination of the victim in a manner or for purposes that 

are medically recognized as unethical or unacceptable. 

(v) When the actor, through concealment or by the element 

of surprise, is able to overcome the victim. [Mich. Comp. 

Laws §§ 750.520d(1)(b); 520b(1)(f)(i) to (v).] 

Under Michigan law “the prohibited force encompasses the use of 

force against a victim to either induce the victim to submit to sexual 

penetration or to seize control of the victim in a manner to facilitate the 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.163 Page 39 of 87
37 

accomplishment of sexual penetration without regard to the victim’s 

wishes.” People v. Carlson, 466 Mich. 130, 140; 644 NW2d 704 (2002). 

The victim testified that Ingram grabbed her hands and placed 

them behind her back. (11/30/2011 Trial Tr. at 40–41, 52.) Ingram 

then pushed her over a cabinet. (Id. at 40, 42.) Ingram squeezed the 

victim’s breasts and touched her vaginal area over her clothes. (Id. at 

41–42.) Ingram pulled the victim’s pants down with force and inserted 

his penis into her vagina from behind. (Id. at 40, 42.) This testimony 

was entirely sufficient to show that Ingram used “force or coercion” to 

accomplish the penetration and sexual contacts. 

Ingram’s attack on the victim’s credibility is simply a challenge to 

the quality of the prosecution’s evidence, and not to the sufficiency of 

the evidence. Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002). 

“[A]ttacks on witness credibility are simply challenges to the quality of 

the government’s evidence and not to the sufficiency of the evidence.” 

United States v. Farley, 2 F.3d 645, 652 (6th Cir. 1993). An assessment 

of the credibility of witnesses is, therefore, beyond the scope of federal 

habeas review of sufficiency of evidence claims. Gall v. Parker, 231 F.3d 

265, 286 (6th Cir. 2000). See also United States v. Bailey, 444 U.S. 394, 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.164 Page 40 of 87
38 

414–15 (1980) (“It is for [jurors] and not for appellate courts to say that 

a particular witness spoke the truth or fabricated a cock-and-bull 

story.”) (internal citations, quotation marks and alterations omitted). 

Moreover, the evidence is not rendered insufficient because the 

victim’s testimony was not corroborated. The testimony of a single, 

uncorroborated prosecuting witness is sufficient to support a conviction, 

so long as the prosecution presents evidence establishing the elements 

of the offense beyond a reasonable doubt. Brown v. Davis, 752 F.2d 

1142, 1144–45 (6th Cir. 1985). The testimony of a sexual assault victim 

alone is sufficient to support a criminal defendant’s sexual assault 

conviction. See United States v. Howard, 218 F.3d 556, 565 (6th Cir. 

2000) (citing Gilbert v. Parke, 763 F.2d 821, 826 (6th Cir. 1985)). A 

rational jury could have concluded from the evidence taken in the light 

most favorable to the prosecution that Ingram used force or coercion to 

accomplish the penetration and the two incidents of sexual contact. 

Under AEDPA, federal “judges will sometimes encounter 

convictions that they believe to be mistaken, but that they must 

nonetheless uphold.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per 

curiam). See also Durr v. Mitchell, 487 F.3d 423, 448 (6th Cir. 2007) 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.165 Page 41 of 87
39 

(affirming the denial of habeas relief despite the fact that, “on de novo 

review, [the court] might be hard-pressed to conclude . . . [that] any 

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

a reasonable doubt”) (citing Jackson, 443 U.S. at 319). 

The state court of appeals decision is not an unreasonable 

application of Jackson or an unreasonable determination of the facts. It 

certainly was not so lacking in justification as to amount to an error 

beyond any possibility of fairminded disagreement. The state court 

rejection of this claim was not so unreasonable that all “fairminded 

jurists” would have concluded otherwise. Harrington, 562 U.S. at 101. 

Consequently, habeas relief is not available for this claim. 

II. Ingram’s claim that his convictions were against the great 

weight of the evidence is not cognizable. 

Ingram’s second habeas claim is that his convictions were against 

the great weight of the evidence. 

The Michigan Court of Appeals considered and denied this claim 

on the merits by applying the correct constitutional standard in a 

manner that was not objectively unreasonable: 

Defendant next argues that the trial court erred by denying 

his motion for a new trial because the jury’s verdict was 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.166 Page 42 of 87
40 

against the great weight of the evidence. A verdict 

contravenes the great weight of the evidence if “the evidence 

preponderates so heavily against the verdict that it would be 

a miscarriage of justice to allow the verdict to stand.” People 

v. Lacalamita, 286 Mich.App 467, 469; 780 NW2d 311 

(2009). A new trial is generally permissible when the 

evidence does not reasonably support the verdict, and the 

verdict was “more likely the result of causes outside the 

record, such as passion, prejudice, sympathy, or some other 

extraneous influence.” Id. 

Defendant contends that his own testimony prejudiced the 

jury and undermined the verdict. In particular, defendant 

argues that, during cross-examination, the prosecution 

elicited testimony regarding his womanizing behavior, which 

caused the jury to dislike him. The record shows that it was 

defendant, rather than the prosecution, who introduced the 

subject. During questioning regarding defendant’s claim that 

he paid BJ for sexual intercourse, defendant testified that 

women usually paid him for sexual intercourse because he 

knows “how to treat a woman.” Defendant cannot now claim 

error predicated on a matter that he himself raised at trial. 

“To hold otherwise would allow defendant to harbor error as 

an appellate parachute.” People v. Fetterley, 229 Mich.App 

511, 520; 583 NW2d 199 (1998). In any event, it is unlikely 

that defendant’s brief account of his self-proclaimed sexual 

prowess caused the jury to convict him based on reasons 

other than the evidence concerning the sexual assault itself. 

In short, the evidence did not preponderate so heavily 

against the verdict that a miscarriage of justice would result 

if the verdict was allowed to stand. Lacalamita, 286 

Mich.App at 469. The trial court therefore did not err by 

denying defendant’s motion for a new trial. 

People v. Ingram, 2013 WL 3717793, at *2. 

This merits adjudication neither contradicts nor unreasonably 

applies Supreme Court case law. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.167 Page 43 of 87
41 

Discussion 

A habeas petitioner’s claim that his conviction is against the great 

weight of the evidence is not cognizable on habeas review. In Michigan, 

a trial court may order a new trial “where the evidence preponderates 

heavily against the verdict and a serious miscarriage of justice would 

otherwise result.” People v. Lemmon, 456 Mich. 625, 642; 576 N.W.2d 

129, 137 (1998). This authority is conferred by statute and court rule. 

Id. at 634 (citing Mich. Comp. Laws § 770.1 and Mich. Ct. Rule 

6.431(B)). The Michigan Supreme Court has noted that the grant of a 

new trial under these circumstances is distinct from the due process 

issues raised by insufficient evidence, and “does not implicate issues of 

a constitutional magnitude.” 576 N.W.2d at 133, n.8. 

A claim that the verdict was against the great weight of the 

evidence is a state law claim not cognizable on federal habeas review. 

See Nash v. Eberlin, 258 F. App’x 761, 764 n.4 (6th Cir. 2007) (“a 

manifest-weight-of-the-evidence argument is a state-law argument”); 

see also Artis v. Collins, 14 F. App’x 387 (6th Cir. 2001) (declining to 

grant certificate of appealability to habeas petitioner on claim that 

jury’s verdict was against the manifest weight of the evidence). In 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.168 Page 44 of 87
42 

short, “[a] federal habeas court has no power to grant habeas corpus 

relief because it finds that the state conviction is against the weight of 

the evidence.” Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985). 

Consequently, habeas relief is not available for this claim. 

III. The state appellate court decision affirming the trial 

court’s refusal to admit evidence of the victim’s prior 

sexual activities on the basis of the Michigan rape-shield 

law did not deprive Ingram of a fair trial where the only 

issue at trial was whether the sex between Ingram and the 

victim was consensual. 

Ingram’s third habeas claim is the trial court erroneously denied 

his motion in limine to allow evidence of the victim’s prior sexual 

history with third parties. 

The Michigan Court of Appeals considered and denied this claim 

on the merits by applying the correct constitutional standard in a 

manner that was not objectively unreasonable: 

Finally, defendant argues that the trial court erroneously 

denied his motion in limine to allow evidence of BJ’s prior 

sexual history with third parties. We review for an abuse of 

discretion a trial court’s decision to admit evidence. People v. 

Gursky, 486 Mich. 596, 606; 786 NW2d 579 (2010). An abuse 

of discretion occurs when the court’s decision “falls outside 

the range of principled outcomes.” People v. Feezel, 486 Mich. 

184, 192; 783 NW2d 67 (2010) (quotation marks and citation 

omitted). 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.169 Page 45 of 87
43 

Generally, all relevant evidence is admissible at trial. MRE 

402. “Relevant evidence is “evidence having any tendency to 

make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable 

than it would be without the evidence”. MRE 401. “Although 

relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair 

prejudice....” MRE 403. 

MCL 750.520j(1), commonly known as the rape-shield law, 

provides: 

Evidence of specific instances of the victim’s 

sexual conduct, opinion evidence of the victim’s 

sexual conduct, and reputation evidence of the 

victim’s sexual conduct shall not be admitted [in 

a criminal sexual conduct prosecution] unless and 

only to the extent that the judge finds that the 

following proposed evidence is material to a fact 

at issue in the case and that its inflammatory or 

prejudicial nature does not outweigh its probative 

value: 

(a) Evidence of the victim’s past sexual conduct 

with the actor. 

(b) Evidence of specific instances of sexual 

activating showing the source or origin of semen, 

pregnancy, or disease. 

During trial defendant sought to admit: (1) testimony from a 

man who claimed to have had a sexual encounter with BJ, 

who then falsely accused him of impregnating her and began 

stalking him; (2) testimony from the man’s supervisor that 

he had spoken with BJ about the stalking; and (3) testimony 

from a third man claiming that BJ “would hit on anyone” 

and had “tried to get with him.” The third man’s proposed 

testimony constituted reputation evidence that was 

inadmissible under MCL 750.520j(1). In addition, the 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.170 Page 46 of 87
44 

supervisor’s proposed testimony was derivative of the man 

who claimed to have had a casual sexual encounter with BJ, 

evidence of which was also inadmissible under the rapeshield statute. Further, the proffered evidence was not 

relevant to whether BJ consented to the particular sexual 

encounter at issue as defendant claimed. Therefore, the trial 

court did not abuse its discretion by denying defendant’s 

motion in limine to introduce the evidence. 

People v. Ingram, 2013 WL 3717793, at *3. 

This merits adjudication neither contradicts nor unreasonably 

applies Supreme Court case law. 

Clearly established federal law 

 The Sixth Amendment Confrontation Clause guarantees the 

accused the right to cross-examine adverse witnesses to uncover 

possible biases and expose the witness’s motivation in testifying. See

Davis v. Alaska, 415 U.S. 308, 315–316 (1974). However, the 

Confrontation Clause guarantees only an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, 

and to whatever extent, that the defendant may wish. United States v. 

Owens, 484 U.S. 554, 559 (1988) (internal citations omitted). A trial 

court has the discretion to limit the scope of cross-examination. 

Delaware v. Van Arsdall, 475 U.S. 673, 675 (1986). 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.171 Page 47 of 87
45 

The Confrontation Clause of the Sixth Amendment does not 

prevent a trial judge from imposing limits on a defense counsel’s 

inquiring into potential bias of a prosecution witness; to the contrary, 

trial judges retain wide latitude insofar as the Confrontation Clause is 

concerned to impose reasonable limits on such cross-examination based 

on concerns about, among other things, harassment, prejudice, 

confusion of issues, a witness’s safety, or interrogation that is repetitive 

or only marginally relevant. Van Arsdall, 475 U.S. at 679. Moreover, 

an accused in a criminal case does not have an unfettered right to offer 

evidence that is incompetent, privileged, or otherwise inadmissible 

under the standard rules of evidence. Montana v. Egelhoff, 518 U.S. 37, 

42 (1996). 

Further, a defendant’s right to confrontation “may, in appropriate 

cases, bow to accommodate other legitimate interests in the criminal 

trial process.” Michigan v. Lucas, 500 U.S. 145, 149 (1991). The 

Supreme Court, in fact, has indicated its “traditional reluctance to 

impose constitutional constraints on ordinary evidentiary rulings by 

state trial courts.” Crane v. Kentucky, 476 U.S. 683, 689 (1986). 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.172 Page 48 of 87
46 

Discussion 

The state appellate court denial of relief regarding this claim was 

not contrary to or an unreasonable application of Supreme Court 

precedent. 

First, the Supreme Court has opined that the rights of victims of 

rape are important enough to justify some limitations on a defendant’s 

right to confront witnesses. See Lucas at 149–50 (“The Michigan [rapeshield] statute represents a valid legislative determination that rape 

victims deserve heightened protection against surprise, harassment, 

and unnecessary invasions of privacy.”). 

Second, the Supreme Court has held that a trial court may 

preclude a defendant from introducing evidence that is “only marginally 

relevant.” Van Arsdall, 475 U.S. at 679. Moreover, an accused in a 

criminal case has no right to introduce evidence that “is inadmissible 

under the standard rules of evidence.” Egelhoff, 518 U.S. at 42. The 

Court of Appeals reasonably concluded that the proffered evidence was 

not relevant to whether the victim consented to the particular sexual 

encounter at issue as Ingram claimed. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.173 Page 49 of 87
47 

Third, the jury had enough information, despite the limits placed 

on the cross-examination, to fully assess Ingram’s theory of the case 

that the sex was consensual. See Stewart v. Wolfenbarger, 468 F.3d 

338, 347 (6th Cir. 2006) ( “Where the trial court limits the extent of 

cross-examination, the inquiry for the reviewing court is whether the 

jury had enough information, despite the limits placed on otherwise 

permitted cross-examination, to assess the defense theory.”) (quotation 

omitted). See also Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) 

(“Only rarely have we held that the right to present a complete defense 

was violated by the exclusion of defense evidence under a state rule of 

evidence.”). 

The Michigan Court of Appeals ruling was reasonable in its 

application of and consistent with clearly established federal law. 

Consequently, habeas relief is not available for this claim. 

IV. A claim that one is actually innocent is not cognizable on 

habeas review and the state appellate court rejection of 

Ingram’s Napue claim was not objectively unreasonable 

where Ingram has not shown perjury occurred much less 

prosecutor knowledge of perjury. 

Ingram’s fourth habeas claim is that because the sex was 

consensual he is actually innocent causing a miscarriage of justice; that 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.174 Page 50 of 87
48 

the prosecution failed to establish the requisite specific acts and 

criminal intent, and that some testimony was a product of perjury and 

resulting in a Napue violation that denied him a fair trial. 

Ingram first raised this claim in his motion for relief from 

judgment. The trial court denied relief stating: 

With his first claim of error, Defendant appears to contend 

that there was insufficient evidence to convict him of the 

offenses and, in a seemingly contradictory vein, that the 

testimonial evidence which supports his convictions should 

be regarded as perjured. 

Insofar as Defendant makes any argument that the evidence 

at trial was insufficient to support his convictions, or that 

his version of the events is more plausible, the Court of 

Appeals has already rejected such argument. As they 

explained: 

Nothing about BJ’s description of the attack can 

be characterized as “patently incredible” or 

contrary to “physical realities.” Defense counsel 

challenged BJ’s description of the assault, and 

she continued to maintain that defendant 

restrained her while at the same time engaging 

in sexual contact and sexual penetration with 

her. During a police interview, defendant denied 

having sexual intercourse with BJ, but he 

testified that he did engage in sexual intercourse 

with her, but that the intercourse was 

consensual. It was ultimately for the jury to 

determine whose testimony to believe, and we 

will not interfere with the jury’s role in assessing 

witness credibility. Harrison, 283 Mich.App at 

378. Moreover, a victim’s testimony alone is 

sufficient to establish criminal sexual conduct, 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.175 Page 51 of 87
49 

and such testimony need not be corroborated. 

MCL 750.520h; People v. Phelps, 288 Mich.App 

123, 132; 791 NW2d 732 (2010). Accordingly, the 

evidence was sufficient to support defendant’s 

convictions, and the trial court did not err by 

denying defendant’s motion for a directed verdict 

of acquittal. 

People v. Ingram, Docket No. 309035, 2013 WL 

3717793, at *2 (Mich. Ct. App. July 16, 2013), lv. 

den 495 Mich. 915 (2013) (underlined emphasis 

added). 

Pursuant to MCR 6.508(D)(2), this Court may not grant a 

motion for relief from judgment on grounds that were 

decided against Defendant on appeal. Therefore, no relief is 

warranted on the ground that there was insufficient 

evidence to support the convictions. 

Alternatively, Defendant claims that this issue should be 

regarded as only partially raised on appeal because it was 

not previously raised as a Napue violation involving alleged 

perjury.1 [Referring to Napue v. Illinois, 360 U.S. 264, 269, 

79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).] However, Defendant’s 

attempt to recast his attack on the victim’s testimony as one 

of alleged perjury, rather than insufficient evidence, is 

unpersuasive. Already implicit in the appellate arguments 

attacking the credibility of the victim’s testimony was the 

notion that the victim’s testimony in court was untruthful. 

The gist of Defendant’s arguments in the present motion is 

that the victim’s testimony should be deemed perjured 

simply because he thinks it should have been disbelieved. To 

that end, his “perjury” arguments appear to consist of such 

matters as arguing alleged discrepancies in the number of 

bruises she testified to at trial as opposed to documented in 

the medical records at a particular point in time, that 

another witness testified as to not hearing her screams as 

she testified, that the (latest) version of events he gave at 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.176 Page 52 of 87
50 

trial as to what he claimed happened should have been 

found “more plausible”, and that the victim’s version lacked 

“scientific support.” Such argument fails to make any 

showing of perjury at his trial, but merely rehashes rejected 

arguments that go to the credibility and weight of the 

evidence. It was for the jury to resolve such credibility and 

weight issues in determining whether there was sufficient 

evidence to convict Defendant of the charged offenses. They 

did so in returning unanimous guilty verdicts against the 

Defendant. It is not for this Court to subvert the role of the 

jury by setting aside their considered credibility 

determinations. Entitlement to relief from judgment has not 

been shown. 

People v. Ingram, No. 08-031317-FH, at *3–4, Saginaw County 

Cir. Ct. Order (Dec. 1, 2015). 

This merits adjudication neither contradicts nor unreasonably 

applies Supreme Court case law. 

Clearly established federal law 

The United States Supreme Court has made clear that the 

“deliberate deception of a court and jurors by the presentation of known 

and false evidence is incompatible with the rudimentary demands of 

justice.” Giglio v. United States, 405 U.S. 150, 153 (1972). It is thus 

well-settled that “a conviction obtained by the knowing use of perjured 

testimony is fundamentally unfair, and must be set aside if there is any 

reasonable likelihood that the false testimony could have affected the 

judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976) 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.177 Page 53 of 87
51 

(footnote omitted); see also Napue v. Illinois, 360 U.S. 264, 271 (1959); 

Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998). 

To prevail on a claim that a conviction was obtained by evidence 

that the government knew or should have known to be false, a 

defendant must show that the statements were actually false, that the 

statements were material, and that the prosecutor knew that the 

statements were false. Coe, 161 F.3d at 343. A habeas petitioner bears 

the burden of proving that the disputed testimony constituted perjury. 

Napue, 360 U.S. at 270. 

Discussion 

First, a claim of actual innocence without a clear separate 

constitutional violation is not cognizable under 28 U.S.C. § 2254. Cress 

v. Palmer, 484 F.3d 844, 854–55 (6th Cir. 2007) (collecting cases). See 

also Muntaser v. Bradshaw, 429 F. App’x 515, 521 (6th Cir. 2011) (“[A]n 

actual innocence claim operates only to excuse a procedural default so 

that a petitioner may bring an independent constitutional challenge, ... 

Given that [petitioner] alleges only a freestanding claim to relief on the 

grounds of actual innocence, his claim is not cognizable ... and, 

accordingly, does not serve as a ground for habeas relief.”). The 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.178 Page 54 of 87
52 

Supreme Court has recently reaffirmed that it has never recognized a 

freestanding claim of actual innocence as a ground for habeas corpus 

relief, except possibly in death-penalty cases. See McQuiggin v. 

Perkins, 133 S. Ct. 1924, 1931 (2013) (“We have not resolved whether a 

prisoner may be entitled to habeas relief based on a freestanding claim 

of actual innocence”). 

Second, the state court rejection of Ingram’s Napue claim was not 

objectively unreasonable. “A claim under Napue will succeed when (1) 

the testimony (or evidence) was actually false, (2) the prosecution knew 

or should have known that the testimony was actually false, and (3) the 

false testimony was material.” Jackson v. Brown, 513 F.3d 1057, 1071-

72 (9th Cir. 2008) (internal quotation marks omitted). The Supreme 

Court has “not clearly established that a police officer’s knowledge of 

false testimony may be attributed to the prosecution under Napue.” Id. 

Ingram’s Napue claim fails because he has not shown that perjury 

occurred, much less that the prosecutor knew perjury was occurring. 

Consequently, habeas relief is not available for this claim. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.179 Page 55 of 87
53 

V. The state appellate court rejection of Ingram’s claim that 

convicting him of CSC III and CSC IV violated double 

jeopardy rights was not objectively unreasonable where 

each crime contains an element the other does not. 

Ingram’s fifth habeas claim is he was subjected to double jeopardy 

in violation of the Fifth Amendment of the United States Constitution, 

where he was subjected to multiple prosecutions for the same offense. 

Ingram first raised this claim in his motion for relief from 

judgment. The trial court denied relief stating: 

Defendant next argues that his convictions for CSC 3rd and 

CSC 4th violate the U.S. Constitution’s Fifth Amendment 

protection against double jeopardy. Defendant is mistaken 

that any double jeopardy issue exists. As explained by our 

Court of Appeals: 

To determine whether a defendant has been 

subjected to multiple punishments for the “same 

offense,” we must first look to determine whether 

the Legislature expressed a clear intention that 

multiple punishments be imposed. People v. 

Smith, 478 Mich. 292, 316, 733 N.W.2d 351 

(2007). Where the Legislature clearly intends to 

impose such multiple punishments, there is no 

double jeopardy violation. Id Where the 

Legislature has not clearly expressed an 

intention to impose multiple punishments, the 

elements of the offenses must be compared using 

the Blockburger test. Id at 316-318, 733 N.W.2d 

351. 

Under the Blockburger test, if each offense 

“requires proof of a fact which the other does not” 

then there is no violation of double jeopardy. Id at 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.180 Page 56 of 87
54 

311, 52 S.Ct 180 (quotation marks and citations 

omitted). However, because the Blockburger test 

is simply a tool used to ascertain legislative 

intent, the focus must be on a comparison of the 

abstract legal elements of the offenses and not on 

the particular facts of the case. People v. Ream, 

481 Mich. 223, 238, 750 N.W.2d 536 (2008). 

People v. Garland, 286 Mich. App. 1, 4-5, 777 

N.W.2d 732, 734-35 (2009) (footnote omitted). 

As the Legislature did not clearly express its intention to 

impose multiple punishments in the CSC chapter, MCL 

750.520 et seq., the Court applies the Blockburger test.2 [The 

“Blockburger test” refers to the test derived from 

Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 

L.Ed. 306 (1932).] Id at 5. Defendant fails to show the 

elements of the crime of CSC 3rd and the crime of CSC 4th 

involve the same factual elements. Indeed, the elements of 

the crimes are separate and distinct from one another. In 

enacting the CSC 3rd statute, our Legislature criminalized 

the act of “sexual penetration with another person” under 

certain circumstances. MCL 750.520d(l). On the other hand, 

CSC 4th criminalizes an act of “sexual contact with another 

person” under certain circumstances. MCL 750.520e(l). 

The terms “sexual penetration” and “sexual contact”, in turn, 

are expressly defined by the CSC chapter and describe 

different conduct. See MCR 750.520a(q) & (r). Thus a CSC 

3rd conviction requires proof of the fact an act of “sexual 

penetration” took place while a CSC 3rd (sic) conviction 

requires different proof of an act of “sexual contact.” Because 

each offense requires proof of a fact that other does not, no 

double jeopardy issue exists. In this case, the evidence 

shows Defendant was convicted of three CSC offenses 

arising out of three separate criminal acts: his sexual 

penetration of the victim, his sexual contact of the victim’s 

breasts, and his sexual contact of her vagina. Defendant was 

not convicted of the “same offense” twice, as each act for 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.181 Page 57 of 87
55 

which he was convicted constitutes a separate offense. No 

relief from judgment is warranted. 

People v. Ingram, No. 08-031317-FH, at *4–6, Saginaw County Cir. Ct. 

Order (Dec. 1, 2015). 

This merits adjudication neither contradicts nor unreasonably 

applies Supreme Court case law. 

Clearly established federal law 

The Double Jeopardy Clause of the Fifth Amendment states that 

no person shall “be subject for the same offense to be twice put in 

jeopardy of life or limb.” The Fourteenth Amendment’s Due Process 

Clause extends the protections of the Double Jeopardy Clause to state 

prosecution. See Benton v. Maryland, 395 U.S. 784, 794 (1969). One of 

the basic protections afforded by the Double Jeopardy Clause is 

protection against multiple punishments for the same offense. Brown v. 

Ohio, 432 U.S. 161, 165 (1977). 

The protection against multiple punishments prohibits the 

government from “punishing twice or attempting a second time to 

punish criminally for the same offense.” Witte v. United States, 515 

U.S. 389, 396 (1995) (quoting Helvering v. Mitchell, 303 U.S. 391, 399 

(1938)). Although the Double Jeopardy Clause protects a defendant 

against cumulative punishments for convictions on the same offense, 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.182 Page 58 of 87
56 

the clause does not prohibit the state from prosecuting a defendant for 

such multiple offenses in a single prosecution. See Ohio v. Johnson, 467 

U.S. 493, 500 (1984). Moreover, whether punishments are multiple, so 

as to violate the Double Jeopardy Clause, is essentially a question of 

legislative intent. Id. at 499. 

When multiple convictions are secured at a single trial, the test 

for determining whether two offenses are sufficiently distinguishable to 

permit the imposition of cumulative punishment is that set forth in 

Blockburger v. United States, 284 U.S. 299, 304 (1932). Brown v. Ohio, 

432 U.S. 161, 166 (1977). As the Supreme Court explained that test in 

Brown: 

The applicable rule is that where the same act or transaction 

constitutes a violation of two distinct statutory provisions, 

the test to be applied to determine whether there are two 

offenses or only one, is whether each provision requires proof 

of an additional fact which the other does not....” This test 

emphasizes the elements of the two crimes. “If each requires 

proof of a fact that the other does not, the Blockburger test is 

satisfied, notwithstanding a substantial overlap in the proof 

offered to establish the crimes. 

Id. at 166 (quoting Iannelli v. United States, 420 U.S. 770, 785 n.17 

(1975)). 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.183 Page 59 of 87
57 

Discussion 

Under the dual layers of deference required by the Supreme 

Court’s double jeopardy precedents and 28 U.S.C. § 2254(d), the state 

appellate court rejection of Ingram’s double jeopardy claim was not 

objectively unreasonable. See Renico v. Lett, 559 U.S. 766, 777 (2010) 

(finding, in the context of a double jeopardy issue, that “dual layers of 

deference” result when AEDPA combines with substantive law that is 

itself deferential). 

In contrast to most habeas claims, which are based entirely on 

federal constitutional rights, a claim under the Double Jeopardy Clause 

requires an analysis of state law; because the state legislature has the 

authority to define and punish crimes, the definition of multiple 

punishments is dependent on the legislative intent of the state 

government. Volpe v. Trim, 708 F.3d 688, 697 (6th Cir. 2013). 

Here the state court reasonably determined after application of 

the Blockburger test that Ingram’s double jeopardy rights were not 

violated when he was convicted of one CSC III and two counts of CSC 

IV where each crime contains an element the other does not. If the 

Blockburger test is satisfied it is presumed that the legislature intended 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.184 Page 60 of 87
58 

to punish the defendant under both statutes and there is no double 

jeopardy bar to multiple punishments. Whalen v. United States, 445 

U.S. 684, 691–92 (1980). 

Moreover, there were three separate crimes that were committed. 

Ingram committed CSC IV when he used force or coercion to grope the 

victim’s breasts and he committed second count of CSC IV when he 

used force or coercion to touch the victim’s vaginal area over her clothes, 

and then Ingram committed a third crime, CSC III, when he used force 

or coercion to put his penis in the victim’s vagina. Under such 

circumstances, Ingram’s double jeopardy rights were not violated. 

Johnson, 467 U.S. at 500. 

Consequently, habeas relief is not available for this claim. 

VI.-VIII. Under the highly deferential standards of Strickland 

v. Washington and 28 U.S.C. § 2254(d), the state court 

rejection of Ingram’s claim that counsel was 

ineffective was not objectively unreasonable. 

Ingram’s sixth, seventh and eighth habeas claims are that trial 

counsel was ineffective when (1) counsel failed to object when the court 

gave a jury instruction that permitted the jury to find him guilty even if 

they were not in unanimous agreement on each charge; (2) counsel 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.185 Page 61 of 87
59 

failed to impeach the victim’s trial testimony with inconsistencies in her 

preliminary examination testimony, and failed to point out the 

discrepancies in closing argument; and (3) counsel failed to do a proper 

investigation and present facts contained in documents that negated 

the victim’s version of events. 

Ingram first raised this claim in his motion for relief from 

judgment. The trial court denied relief stating: 

[R]elief [from judgment] may not be granted where the 

motion: 

(3) alleges grounds for relief, other than jurisdictional 

defects, which could have been raised on appeal from the 

conviction and sentence or in a prior motion under this 

subchapter, unless the defendant demonstrates (a) good 

cause for failure to raise such grounds on appeal or in the 

prior motion, and (b) actual prejudice from the alleged 

irregularities that support the claim for relief ... 

MCR 6.508(D)(3). 

*** 

In considering claims of ineffective assistance of counsel, 

effective assistance of counsel is presumed and the 

defendant bears the heavy burden of proving otherwise. 

People v. Mack, 265 Mich.App 122, 129; 695 NW2d 342 

(2005). To prevail, a Defendant must establish: (1) his 

counsel’s performance was deficient under an objective 

standard of reasonableness and (2) the deficiency was 

prejudicial to defendant to the extent that, but for counsel’s 

error, the result of the proceedings would have been 

different. Id. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.186 Page 62 of 87
60 

*** 

Trial counsel did vigorously challenge the credibility of the 

victim’s testimony by arguing alleged inconsistencies and 

discrepancies during closing argument. See TT.III 93-98.3. 

[“TT.III” refers to Trial Transcript, Vol. III.] 

*** 

Actual prejudice warranting relief from judgment has not 

been shown. 

People v. Ingram, No. 08-031317-FH, at *2, 7, 8, Saginaw County Cir. 

Ct. Order (Dec. 1, 2015). 

The resolution of this claim was not an unreasonable application 

of the “clearly established” principles of Strickland “beyond any 

possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. 

Procedural default 

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 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, 132 S. Ct. 1309, 1316 (2012). 

A habeas petitioner procedurally defaults a claim if: (1) the 

petitioner fails to comply with a state procedural rule; (2) the state 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.187 Page 63 of 87
61 

courts enforce 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 cannot show cause and prejudice excusing 

the default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en 

banc). 

Claims VI, VII and VIII are procedurally defaulted because after 

citing Mich. Ct. Rule 6.508(D)(3)’s “actual prejudice” language the trial 

court denied relief because Ingram could not show “actual prejudice.” 

People v. Ingram, No. 08-031317-FH, at *2, 7, 8, Saginaw County Cir. 

Ct. Order (Dec. 1, 2015). 

This claim is procedurally defaulted because the trial court 

rejected it on the basis of Mich. Ct. Rule 6.508(D)(3). See Ivory v. 

Jackson, 509 F.3d 284, 292–93 (6th Cir. 2007); Howard v. Bouchard, 

405 F.3d 459, 477 (6th Cir. 2005). Accord Amos v. Renico, 683 F.3d 720, 

727 (6th Cir. 2012) (holding that a Michigan court’s denial of a motion 

for relief from judgment under Rule 6.508(D)(3) is both an independent 

and adequate state ground sufficient for procedural default). 

Further, a state court does not fail to sufficiently rely upon a 

procedural default by ruling on the merits in the alternative. See

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.188 Page 64 of 87
62 

McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). In fact, the 

alternative merits analysis is entitled to AEDPA deference. See

Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009). 

“Out of respect for finality, comity, and the orderly administration 

of justice, a federal court will not entertain a procedurally defaulted 

constitutional claim in a petition for habeas corpus absent a showing of 

cause and prejudice to excuse the default.” Dretke v. Haley, 541 U.S. 

386, 388 (2004). See also Coleman v. Thompson, 501 U.S. 722, 729–30 

(1991). 

Under limited circumstances (which do not exist here), appellate 

counsel’s ineffectiveness can serve as cause to excuse the state-court 

procedural default of other constitutional claims. Wogenstahl v. 

Mitchell, 668 F.3d 307, 321–22 (6th Cir. 2012). But it does not do so 

here because claims VI, VII and VIII do not merit habeas relief. See 

Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001) (Because none of the 

underlying claims is meritorious, ineffective assistance of counsel does 

not excuse the procedural default.). 

Alternatively, Ingram may avoid procedural default if he can 

demonstrate that a fundamental miscarriage of justice will occur as a 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.189 Page 65 of 87
63 

result of the Court’s failure to consider the substantive merits of these 

claims. Coleman, 501 U.S. at 750. The narrow exception for 

fundamental miscarriages of justice is reserved for the extraordinary 

case in which the alleged constitutional error probably resulted in the 

conviction of one who is actually innocent of the underlying offense. 

Dretke, 541 U.S. at 388; Carrier, 477 U.S. at 496. 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). To show that this case is the 

“extraordinary” one warranting application of this exception, the 

petitioner must demonstrate “that it is more likely than not that no 

reasonable juror would have convicted him in the light of the new 

evidence.” Schlup, 513 U.S. at 321, 327. Ingram has not presented any 

new reliable evidence suggesting he is actually innocent. 

Therefore, a miscarriage of justice will not occur as a result of the 

Court’s failure to consider the substantive merits of these claims. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.190 Page 66 of 87
64 

But even if the procedural default is excused or overlooked, this 

claim does not warrant habeas relief. 

Clearly established federal law 

The Supreme Court’s decision in Strickland v. Washington, 466 

U.S. 668 (1984), is clearly established federal law for purposes of 

ineffective-assistance-of-counsel claims. Cullen v. Pinholster, 563 U.S. 

170, 189 (2011). As stated in Maryland v. Kulbicki, 136 S. Ct. 2 (2015), 

“Counsel is unconstitutionally ineffective if his performance is both 

deficient, meaning his errors are ‘so serious’ that he no longer functions 

as ‘counsel,’ and prejudicial, meaning his errors deprive the defendant 

of a fair trial.” (quoting Strickland). 

The standard for obtaining habeas corpus relief is “difficult to 

meet.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014). 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 two 

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

(internal citations and quotation marks omitted). Recognizing that 

state courts are no less experienced than federal courts in dealing with 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.191 Page 67 of 87
65 

claims of ineffective assistance of counsel, Burt v. Titlow, 134 S. Ct. 10, 

14 (2013), federal law erects a high deferential standard—indeed, a 

“doubly deferential standard”—for claims that a state court erred. 

On habeas review of a state-court conviction, “[a] state court must 

be granted a deference and latitude that are not in operation when the 

case involves review under the Strickland standard itself.” Harrington, 

562 U.S. at 101. On habeas review, the question “is not whether a 

federal court believes the state court’s determination under the 

Strickland standard was incorrect but whether that determination was 

unreasonable—a substantially higher threshold.” Mirzayance, 556 U.S. 

at 123 (quoting Schriro, 550 U.S. at 473) (internal quotation marks 

omitted). “The pivotal question is whether the state court’s application 

of the Strickland standard was unreasonable.” Harrington, 562 U.S. at 

101. “This is different from asking whether defense counsel’s 

performance fell below Strickland’s standard.” Id. “And, because the 

Strickland standard is a general standard, a state court has even more 

latitude to reasonably determine that a defendant has not satisfied that 

standard.” Mirzayance, 556 U.S. at 123. “When § 2254(d) applies, the 

question is not whether counsel’s actions were reasonable. The 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.192 Page 68 of 87
66 

question is whether there is any reasonable argument that counsel 

satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 

105. See also Storey v. Vasbinder, 657 F.3d 372, 374 (6th Cir. 2011) 

(“[T]he Supreme Court has gone out of its way to make clear that, in 

order to obtain a new trial on ineffective-assistance grounds, the 

petitioner must do more than show that he had a bad lawyer—even a 

really bad one. Instead, the petitioner must also show prejudice, which 

means he must show a reasonable likelihood that his lawyer’s bad 

performance made a difference in the outcome of his trial. The Court’s 

precedents make clear that the former showing by no means leads 

inevitably to the latter.”). 

Further, the reviewing court is required not simply to give the 

attorney the benefit of the doubt, but to affirmatively entertain the 

range of possible reasons counsel may have had for proceeding as he 

did. Cullen v. Pinholster, 563 U.S. at 196 (the habeas court must 

“affirmatively entertain the range of possible reasons [ ] counsel may 

have had for proceeding as [he] did”) (internal quotation marks 

omitted). 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.193 Page 69 of 87
67 

Discussion 

This claim fails when it is viewed through the doubly deferential 

lens of Strickland and AEDPA. In other words, giving proper deference 

to counsel’s judgment and the state court decision, Ingram has not 

shown that the state court’s decision was objectively unreasonable. 

Ingram has not shown within a reasonable probability that if 

counsel had objected to the jury instructions, or engaged in better crossexamination of the victim or given a better closing argument or engaged 

in additional investigation that the jury would have had a reasonable 

doubt respecting his guilt. 

An attorney’s failure to object to jury instructions is deficient only 

if the petitioner can establish that the instructions were inaccurate and 

that, therefore, an objection would have been sustained. Daniels v 

Lafler, 501 F.3d 735, 743 (6th Cir. 2007). 

Most cross-examinations can be improved but if that “were the 

standard of constitutional effectiveness, few would be the counsel whose 

performance [pass] muster.” Willis v. United States, 87 F.3d 1004, 1006 

(8th Cir. 1996). Contrary to Ingram’s claim, his attorney did impeach 

the victim with prior inconsistent preliminary examination testimony. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.194 Page 70 of 87
68 

(11/30/2100 Trial Tr. at 63–65.) Nor has Ingram established 

prejudice—i.e. a “reasonable probability that more vigorous 

examination” would have changed the result of the trial. Tevlin v. 

Spencer, 621 F.3d 59, 69 (1st Cir. 2010). 

“Judicial review of a defense attorney’s summation is . . . highly 

deferential - and doubly deferential when it is conducted through the 

lens of federal habeas.” Yarborough v. Gentry, 540 U.S. 1, 6 (2003). As 

noted by the trial court, Ingram’s attorney did vigorously challenge the 

credibility of the victim’s testimony by arguing alleged inconsistencies 

and discrepancies during closing argument. See (12/1/2011 Trial Tr. at 

93–98.) See also Robinson v. United States, 625 F. App’x 721, 726 (6th 

Cir. Sept. 1, 2015) (“given the evidence that the government presented, 

even a better summation probably would not have persuaded the jury to 

acquit. Robinson therefore cannot show prejudice.”) 

Consequently, habeas relief is not available for this claim. 

IX. Challenges to the scoring of state sentencing guidelines 

are not cognizable on habeas review. 

Ingram’s ninth habeas claim is that offense variable 13 and prior 

record variable 7 were misscored. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.195 Page 71 of 87
69 

Ingram first raised this claim in his motion for relief from 

judgment. The trial court denied relief stating: 

Defendant further contends that prior record variable 7 

(“PRV 7”) and offense variable 13 (“OV 13”) were improperly 

scored in calculating his sentencing guidelines. Defendant’s 

argument for a rescoring of these variables is conditioned on 

whether his double jeopardy argument is successful. As 

Defendant’s double jeopardy argument lacks merit, there is 

no basis for treating his three convictions as only one for 

purposes of rescoring these guidelines variables. Relief from 

judgment is not warranted. 

People v. Ingram, No. 08-031317-FH, at *6, Saginaw County Cir. Ct. 

Order (Dec. 1, 2015). 

This merits adjudication neither contradicts nor unreasonably 

applies Supreme Court case law. 

Discussion 

Relief should be denied because the claim is not cognizable. 

Claims concerning the improper scoring of sentencing guidelines are 

state-law claims and are not cognizable in habeas corpus proceedings. 

See Hutto v. Davis, 454 U.S. 370, 373–74 (1982) (federal courts normally 

do not review a sentence for a term of years that falls within the limits 

prescribed by the state legislature). 

The Sixth Circuit has held on numerous occasions that alleged 

errors in the scoring of Michigan’s sentencing guidelines are not 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.196 Page 72 of 87
70 

cognizable on habeas review. Cheatham v. Hosey, No. 93–1319, 1993 

WL 478854, at *2 (6th Cir. Nov. 19, 1993) (departure from sentencing 

guidelines is an issue of state law, and, thus, not cognizable in federal 

habeas review); Austin v. Jackson, 213 F.3d 298, 301 (6th Cir. 2000) 

(“Petitioner fails to articulate the grounds upon which the trial court’s 

departure from the Michigan Sentencing guidelines violates any federal 

due process right he possesses.”); Howard v. White, 76 F. App’x 52, 53 

(6th Cir. 2003) (“A state court’s alleged misinterpretation of state 

sentencing guidelines . . . is a matter of state concern only.”); Tironi v. 

Birkett, 252 F. App’x 724, 725 (6th Cir. 2007) (“Tironi’s challenges to the 

trial court’s application of Michigan’s sentencing guidelines also raise 

issues of state law not cognizable on habeas review.”); Coleman v. 

Curtin, 425 F. App’x 483, 484–85 (6th Cir., 2011) (“To the extent that 

Coleman asserts his sentence was improperly calculated under state 

law, his claim is not cognizable in federal habeas proceedings.”); Kissner 

v. Palmer, 826 F.3d 898, 901 (6th Cir. 2016) (finding a certificate of 

appealability is not available for a claim that state sentencing 

guidelines were misscored). 

Consequently, habeas relief is not available for this claim. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.197 Page 73 of 87
71 

X. Under the highly deferential standards of Strickland v. 

Washington and 28 U.S.C. § 2254(d), the state court 

rejection of Ingram’s claim that appellate counsel was 

ineffective was not objectively unreasonable because none 

of the omitted issues was reasonably likely to lead to a 

different result if raised on direct appeal. 

Ingram’s tenth and final habeas claim is that appellate counsel 

was ineffective for not raising habeas claims IV-IX in his direct appeal. 

Ingram first raised this claim in his motion for relief from 

judgment. The trial court denied relief stating: 

Finally, Defendant contends that his trial and appellate 

attorneys were ineffective in failing to raise the grounds 

asserted in the presented motion. “The test for ineffective 

assistance of appellate counsel is the same as that for trial 

counsel.” People v. Pratt, 254 Mich.App. 425, 430 (2002). In 

considering claims of ineffective assistance of counsel, 

effective assistance of counsel is presumed and the 

defendant bears the heavy burden of proving otherwise. 

People v. Mack, 265 Mich.App 122, 129; 695 NW2d 342 

(2005). To prevail, a Defendant must establish: (1) his 

counsel’s performance was deficient under an objective 

standard of reasonableness and (2) the deficiency was 

prejudicial to defendant to the extent that, but for counsel’s 

error, the result of the proceedings would have been 

different. Id. Appellate counsel is not ineffective for 

winnowing out weak arguments or failing to advocate a 

meritless position. Pratt, 265 Mich.App. at 130 (2005). 

Here, none of the grounds raised in the present have any 

legal merit and neither trial nor appellate counsel is 

ineffective for failing to raise these grounds devoid of legal 

merit. Trial counsel did vigorously challenge the credibility 

of the victim’s testimony by arguing alleged inconsistencies 

and discrepancies during closing argument. See TT.III 93-

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.198 Page 74 of 87
72 

98.3 [“TT.III” refers to Trial Transcript, Vol. III.] 

Additionally, because Defendant has failed to establish any 

meritorious claim of error not raised by his appellate 

attorney, he has not shown that appellate counsel failed to 

raise an error that would have resulted in a reasonably 

likely chance of acquittal. Actual prejudice warranting relief 

from judgment has not been shown. 

People v. Ingram, No. 08-031317-FH, at *7–8, Saginaw County Cir. Ct. 

Order (Dec. 1, 2015). 

This merits adjudication neither contradicts nor unreasonably 

applies Supreme Court case law. 

Clearly established federal law 

A defendant’s right to counsel on appeal derives not from the 

Sixth Amendment, but from the Due Process and Equal Protection 

Clauses of the Fourteenth Amendment. See Martinez v. Court of Appeal 

of Cal., 528 U.S. 152, 160–61 (2000) (explaining that the right to 

appellate counsel is based on the Fourteenth Amendment and that “the 

Sixth Amendment does not apply to appellate proceedings”). 

The clearly established Federal law in play when a petitioner 

asserts that his appellate counsel was ineffective is Strickland v. 

Washington, 466 U.S. 668, 687 (1984). See Roe v. Flores-Ortega, 528 

U.S. 470, 477 (2000), which applied the Strickland framework to an 

appellate counsel claim when the challenge is aimed at the selection of 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.199 Page 75 of 87
73 

issues presented on appeal. See also Smith v. Robbins, 528 U.S. 259, 

285 (2000) (holding a petitioner who argued his appellate counsel 

rendered ineffective assistance must satisfy both prongs of Strickland). 

Appellate counsel is not required to raise every conceivable issue; 

as the Supreme Court has observed, “[e]xperienced advocates since time 

beyond memory have emphasized the importance of winnowing out 

weaker arguments on appeal and focusing on one central issue if 

possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 

751–52 (1983). See also Pierce v. Visteon Corp., 791 F.3d 782, 788 (7th 

Cir. 2015) (“To brief more than three or four issues not only diverts the 

judges’ attention but also means that none of the issues will be 

addressed in the necessary depth.”); Jones v Bell, 801 F.3d 556, 562 (6th 

Cir. 2015) (It is not deficient performance to leave out some colorable 

issues, “indeed, it may even be the best type of performance.”) (emphasis 

in original). 

When a habeas petitioner alleges that his appellate attorney was 

ineffective a habeas court defers twice – once to appellate counsel’s 

decision not to raise the issue and again to the State court’s decision 

finding no ineffectiveness. Etherton v. Woods, 136 S. Ct. 1149, 1153 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.200 Page 76 of 87
74 

(2016) (per curiam) (“Given AEDPA, both Etherton’s appellate counsel 

and the state habeas court were to be afforded the benefit of the 

doubt.”). In the context of claims premised on counsel’s failure to raise 

certain issues on direct appeal, the question is whether the state courts 

had any “reasonable basis” for concluding the petitioner would not have 

prevailed if his appellate counsel had raised these issues on direct 

appeal. Goff v. Bagley, 601 F.3d 445, 462 (6th Cir. 2010). 

Finally, when ineffective assistance of appellate counsel is shown, 

the prevailing habeas petitioner is entitled to a new direct appeal, not a 

new trial. See Evitts v. Lucey, 469 U.S. 387, 403 (1985) (defendant 

entitled to new appeal when counsel’s deficient failure to comply with 

local court rules led to dismissal of first appeal); Mapes v. Tate, 388 F.3d 

187, 194–95 (6th Cir. 2004); Hardaway v. Robinson, 655 F.3d 445, 451 

(6th Cir. 2011). “Such a narrow remedy neutralizes the constitutional 

violation.” See Mapes, 388 F.3d at 195. 

Discussion 

The decision of the state court rejecting this claim withstands 

scrutiny under the requisite “doubly deferential” standard applicable 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.201 Page 77 of 87
75 

where both appellate counsel and the state habeas court are afforded 

the benefit of the doubt. Woods, 136 S. Ct. at 1153. 

None of the claims Ingram argues his appellate attorney should 

have raised on direct appeal have been shown to have such obvious 

merit that counsel was ineffective in failing to raise them. Reasonable 

strategic choices by appellate counsel as to which issues to raise, while 

not necessarily those a federal judge in hindsight might make, do not 

rise to the level of a constitutional violation. Barnes, 463 U.S. at 750–

54. Given the emphasis in appellate practice on not raising too many 

different issues and thus not diluting or burying a defendant’s strongest 

points, the state court rejection of this claim was not unreasonable 

application of the Strickland standard. 

As it was, appellate counsel presented three legitimate issues on 

direct appeal. Indeed, Ingram is still presenting those same claims in 

his amended petition, asserting that they entitle him to habeas relief. 

“[I]t is difficult to establish ineffective assistance when counsel’s overall 

performance indicates active and capable advocacy.” Harrington, 562 

U.S. at 111. Appellate counsel’s ultimate goal in selecting issues is to 

“maximize the likelihood of success.” Smith, 528 U.S. at 288. Appellate 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.202 Page 78 of 87
76 

counsel’s selection of the issues did not so clearly fall outside the wide 

range of professionally competent assistance that the state court was 

required to find deficient performance. 

Appellate counsel did not commit an error of constitutional 

magnitude. In other words, the omitted issues were not so plainly 

meritorious that it would have been objectively unreasonable for 

appellate counsel to winnow them out from the issues appellate counsel 

chose to present in the exercise of his professional judgment. See 

Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (the petitioner 

failed to demonstrate that any “omitted issue [was] so plainly 

meritorious that it would have been unreasonable to winnow it out”). 

See also Smith v. Murray, 477 U.S. 527, 535 (1986) (concluding that 

counsel’s decision not to press a claim on appeal was not “an error of 

such magnitude that it rendered counsel’s performance constitutionally 

deficient under the test of Strickland v. Washington”). Habeas relief of 

a new appeal is not available because a reasonable probability that the 

unraised issues would have succeeded on direct appeal has not been 

shown. See Robbins, 528 U.S. at 285–86. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.203 Page 79 of 87
77 

Finally, even if the state court did not reach the correct result 

under Strickland, it at least reached a reasonable one, which is 

sufficient under § 2254(d) to require denial of relief on this basis. 

Consequently, this ineffective assistance of appellate counsel 

claim does not warrant granting Ingram a new direct appeal. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.204 Page 80 of 87
78 

CONCLUSION 

Ingram’s convictions were not the result of an “extreme 

malfunction” in the state criminal justice system. Harrington, 562 U.S. 

at 102. Rather, they are the result of the direct and circumstantial 

evidence of his guilt. 

The state courts’ rejection of Ingram’s claims did not result in 

decisions that were contrary to federal law, unreasonable applications 

of federal law, or unreasonable determinations of the facts. The statecourt decisions in this case were not “so lacking in justification” that 

they resulted in “an error well understood and comprehended in 

existing law beyond any possibility for fairminded disagreement.” 

Harrington, 562 U.S. at 103. The formidable threshold for granting 

habeas relief has not been met because fairminded jurists could 

disagree or agree on the correctness of the state court’s decision. 

Ingram was “entitled to a fair trial but not a perfect one, for there 

are no perfect trials.” Brown v. United States, 411 U.S. 223, 231–32 

(1973); see also United States v. Hajal, 555 F.2d 558, 569 (6th Cir. 1977) 

(“[W]e have yet to review a perfect jury trial.”); Puckett v. United States, 

556 U.S. 129, 134 (2009) (“anyone familiar with the work of courts 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.205 Page 81 of 87
79 

understands that errors are a constant in the trial process, that most do 

not much matter”). 

Additionally, the State asserts that Ingram is not entitled to 

habeas relief because he has not established that the alleged errors had 

a “substantial and injurious effect or influence” on the verdict in this 

matter. See Brecht v. Abrahamson, 507 U.S. 619 (1993). The State 

recognizes that a Brecht harmless error analysis is not necessary for 

claims of ineffective assistance of counsel. See Kyles v. Whitley, 514 

U.S. 419, 435–36 (1995). This is because the “prejudice prong of the 

ineffective assistance analysis subsumes the Brecht harmless-error 

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

To warrant habeas relief, a questionable evidentiary admission 

must not only be erroneous, but it must also be so infirm that it 

rendered the trial fundamentally unfair, such that it had influence in 

determining the jury’s verdict. See Coe v. Bell, 161 F.3d 320, 329 (6th 

Cir. 1998); see also McCarley v. Kelly, 801 F.3d 652, 665 (6th Cir. 2015). 

The State also contends that Ingram has not demonstrated 

entitlement to discovery. “A habeas petitioner, unlike the usual civil 

litigant, is not entitled to discovery as a matter of ordinary course.” 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.206 Page 82 of 87
80 

Bracy v. Gramley, 520 U.S. 899, 904 (1997). Instead, a habeas 

petitioner is entitled to discovery only if the district judge “in the 

exercise of his discretion and for good cause shown grants leave” to 

conduct discovery. Rule 6 Governing Section 2254 Cases in the United 

States District Courts, 28 U.S.C. foll. § 2254. To establish “good cause” 

for discovery, a habeas petitioner must establish that the requested 

discovery will develop facts which will enable him or her to demonstrate 

that he or she is entitled to habeas relief. See Bracy, 520 U.S. at 908–

09. Rule 6(a) permits district courts to authorize discovery in habeas 

corpus proceedings under the Federal Rules of Civil Procedure only “for 

good cause.” R. Governing § 2254 Cases in the U.S. Dist. Cts. 6(a). 

“Rule 6 embodies the principle that a court must provide discovery in a 

habeas proceeding only ‘where specific allegations before the court show 

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

developed, be able to demonstrate that he is . . . entitled to relief.’ ” 

Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004) (quoting Bracy, 

520 U.S. at 908–09). “Rule 6 does not ‘sanction fishing expeditions 

based on a petitioner’s conclusory allegations.’ ” Williams, 380 F.3d at 

974 (quoting Rector v. Johnson, 120 F.3d 551, 562 (5th Cir. 1997)); 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.207 Page 83 of 87
81 

Habeas Rule 6(a). “Conclusory allegations are not enough to warrant 

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

of fact.” Williams, 380 F.3d at 974 (internal quotation marks and 

citation omitted). Ingram has not met this burden. 

If this Court denies the petition, the State asserts that Ingram is 

also not entitled to a certificate of appealability (COA) so as to proceed 

further. In order to obtain a COA, a petitioner must make “a 

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 

2253(c)(2). To demonstrate this denial, the petitioner 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); see also 

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“Under the controlling 

standard, a petitioner must sho[w] that reasonable jurists could debate 

whether (or, for that matter, 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.”) (citations 

omitted). 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.208 Page 84 of 87
82 

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. Slack, 529 U.S. at 483–84. Likewise, 

when a district court denies a habeas petition on procedural grounds 

without reaching the petitioner’s underlying constitutional claims, a 

COA should issue, and an appeal of the district court’s order may be 

taken, if the petitioner shows that jurists of reason would find it 

debatable whether the petitioner 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. 529 U.S. 

at 484. 

When a plain procedural bar is present, and the district court is 

correct to invoke it to dispose of the case, a reasonable jurist could not 

conclude either that the district court erred in dismissing the petition or 

that the petition should be allowed to proceed further. In such a 

circumstance, no appeal would be warranted. Slack, 529 U.S. at 484. 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.209 Page 85 of 87
83 

RELIEF 

For the reasons stated above, the extraordinary remedy of habeas 

corpus is not warranted. The Court should also deny Ingram any 

requested discovery, evidentiary hearing, bond, oral argument, and any 

other relief he seeks in this action, including a certificate of 

appealability. 

Respectfully submitted, 

Bill Schuette 

Attorney General 

s/Bruce H. Edwards 

 

Assistant Attorney General 

Criminal Appellate Division 

P.O. Box 30217 

Lansing, MI 48909 

(517) 373-4875 

Edwardsb8@michigan.gov 

(P34983) 

Dated: March 24, 2017 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.210 Page 86 of 87
84 

CERTIFICATE OF SERVICE 

I hereby certify that on March 24, 2017, I electronically filed the 

foregoing papers with the Clerk of the Court using the ECF system 

which will send notification of such filing to the following: 

HONORABLE DAVID M. LAWSON 

MAGISTRATE JUDGE DAVID R. GRAND 

and I hereby certify that Kathy Land has mailed by United States 

Postal Service the papers to the following non-ECF participant: 

Charles Ingram, #825646 

Cooper Street Correctional Facility 

3100 Cooper St. 

Jackson, MI 49201 

Respectfully submitted, 

Bill Schuette 

Attorney General 

s/Bruce H. Edwards 

 

Assistant Attorney General 

Criminal Appellate Division 

P.O. Box 30217 

Lansing, MI 48909 

(517) 373-4875 

Edwardsb8@michigan.gov 

(P34983) 

Case 2:15-cv-11074-DML-DRG ECF No. 10 filed 03/24/17 PageID.211 Page 87 of 87