UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WALTER STEPHENS,

Petitioner,

v.

STEVEN RIVARD,

Respondent.

 /

Case No. 2:15-cv-10762

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER DENYING THE PETITION FOR A WRIT

OF HABEAS CORPUS (document no. 1), DENYING A CERTIFICATE OF

APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

INTRODUCTION

The case sounds in habeas corpus brought pursuant to 28 U.S.C. § 2254. Following

a jury trial in the Genesee County Circuit Court, prisoner Walter Stephens was convicted

of first-degree felony murder, armed robbery, felon in possession of a firearm, and

possession of a firearm during the commission of a felony. Mich. Comp. Laws §§ 750.316,

750.529, 750.224f, 750.227b. In 2012, he was sentenced to life imprisonment, a concurrent

term of 20 to 40 years imprisonment, a concurrent term of two to five years imprisonment,

and a consecutive term of two years imprisonment on those convictions. In his pro se

pleadings, Stephens raises claims concerning the sufficiency of the evidence and the

effectiveness of trial counsel. For the reasons below, the Court finds that Stephens is not

entitled to habeas relief and will deny his petition. The Court will also deny a certificate of

appealability and leave to proceed in forma pauperis on appeal.

FACTS AND PROCEDURAL HISTORY

Stephens's convictions arise from the robbery and shooting death of a man in an

apartment in Flint, Michigan in July 2010. The Court adopts the statement of facts set forth

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by defense counsel on direct appeal to the extent that it is consistent with the record. Those

facts are as follows:

The Prosecution

On July 7, 2010, near 12:45 p.m., Sergeant David Bender of the Flint Police

was patrolling downtown Flint in a semi-marked car (TT I 251-253). Bender

observed a panhandler and pulled behind an apartment building on Court Street

where he observed a Chrysler Sebring in a parking area. Id. The doors and

trunk of the Chrysler were closed and no one was near it (TT I 292-293). After

about five minutes, Bender circled the block and returned to said building (TT

I 253). This time, as he entered the parking area, he saw two people near the

Chrysler (TT I 254). He testified:

There was two younger black males. The doors were open on the car.

The trunk was open. And, as I pulled in front of them, I looked over to my

right and they both had t-shirts on and they were both tied around their

noses, that using as like [sic] a face mask (TT I 254).

Bender pulled within 10 feet of the men and noticed the butt of a handgun

sticking from one of their pockets (TT I 254). He did not see the men place

anything inside the Chrysler (TT 1309-310). He could not recall if the car's

engine was running (TT I 282). Bender made eye contact with the two men, who

then ran as Bender radioed-in for help and pursued them (TT I 255). Bender

admitted telling dispatch that he was pursuing two white males; he testified he

misspoke (TT I 256-257).

Bender apprehended one of the men at gunpoint - defendant - the man with the

gun in his pocket (TT I 257, 259). The gun was unloaded but capable of holding

six rounds (TT I 310). The gun was a revolver, so any fired casing would remain

inside the gun's cylinder until extracted (TT I 322-323). The gun was

unregistered (TT I 311). Defendant had his shirt off (TT I 258). As Bender

placed defendant in custody, Bender saw Officer Howell pursuing the other

man, Curtis McCloud (TT I 262, 300-301).

Bender returned to the apartment building and found a large flat screen

television inside the trunk of said Chrysler (TT I 264). A latent print examiner

testified that defendant's fingerprint was found on the television (TT II 116, 143).

A DNA analyst testified that a baseball cap police found inside the Chrysler had

DNA on it with a profile consistent with defendant's DNA profile (TT I 284, II

254). Police found seven live .38 caliber rounds in the console of the Chrysler

(TT II 112).

Police suspected a breaking and entering had occurred into said apartment

building on Court Street (TT I 267). They made their way to Apartment #9,

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where they found Steven Hood, deceased, on the floor between a kitchen and

front room (TT II 10). No one else was in the apartment (TT II 12). A pathologist

testified that Hood suffered a single fatal gunshot wound to his chest which

passed through his lungs and aorta (TT II 166, 169). One bullet was collected

(TT II 169). Its path was front to back, right to left, and downward at a range of

12 to 36 inches (TT II 174). Hood's toxicology was found to be positive for

Prozac, Vicodin, Morphine, and cocaine metabolite (TT II 177).

Inside Apartment 9, police found an entertainment center from which a

television appeared to be missing (TT I 275, II 181). There was a glass cup on

the floor with pink liquid inside it (TT I 280). Police searched and found no spent

shell casings inside the apartment (TT I 325, II 26). The lead investigator, Det.

Marcus Mahan, described the apartment as being in a state of disarray (TT II

181).

A firearm identification expert testified that the gun found on defendant

functioned properly (TT III 58). He opined that, based on striation marks, the

bullet found inside Mr. Hood was fired from said gun (TT III 59). He testified that

the unfired cartridges found inside said Chrysler could be used in said firearm

(TT III 61). He could not say they were identical to the spent round that killed

Hood (TT III 64). He too testified that a used casing would remain in the gun

after it was fired until removed (TT III 67).

Returning to Officer Bender, he testified that, except for "split seconds here or

there," both suspects were in his sight as they ran (TT I 306, 320). He testified

that he lost sight of McCloud longer than he did defendant (TT I 321). The entire

chase lasted about two minutes (TT I 306). Bender retraced the path of the two

men as they fled, in an unsuccessful attempt to find spent shell casings (TT I

285). Bender testified that he never saw defendant remove the gun from his

pocket, or empty any shell casings, as he fled (TT I 326).

Bender collected defendant's personal items, including a t-shirt he was found

with (TT I 286-287, 325). Bender opined that the t-shirt had appeared to be

stained with a dry, pink substance. Id. Defendant otherwise possessed a lighter,

one Swisher Sweet® cigar, and hair items but no contraband, other than the

unloaded gun (TT I 291-292). Bender testified that he never observed defendant

or McCloud inside the apartment building (TT I 301).

Officers Dickenson and Dumanois responded to the scene. Dickerson saw

defendant in Bender's custody and Dumanois saw McCloud in an Officer

Howell's custody; no weapon was found on McCloud (TT II 37, 43). Dickenson

and Dumanois transported defendant to the police station. According to

Dickenson:

A: [Defendant] Stephens asked if we could take him by his father's home

on Cottage Grove.

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Q: And, what did - - what was your response?

A: I just said - - I asked why. Mr. Stephens stated that he wanted to go

back and tell his father goodbye because he wasn't going to see him for

a long time [TT II 38-39].

Dumanois testified that he heard the same remark (TT II 44-45).

Police Investigator Mahan observed a small cut to McCloud's face (TT II 212).

He observed no injury on defendant (TT II 213). Mahan testified that defendant

and McCloud refused to talk with him (TT II 185). Mahan testified that, " ... all

the evidence pointed back to Mr. McCloud and Mr. Stephens" (TT II 186). The

trial court later instructed the jury that defendant had a right to not speak with

police and that they should not consider the testimony from Mahan that the two

men chose to make no statement (TT II 216).

Various items were collected from Apartment 9 and examined for prints and

DNA (See gen. TT II 234-236, III 17, 20-24). Counsel stipulated, " ... that there

is nothing conclusively in those [lab] reports that's able to - - to link Mr.

Stephens to the apartment" (TT II 195). Investigator Mahan testified that, other

than defendant's fingerprint on the television, police had no evidence putting

defendant inside the apartment building (TT II 205). No blood was found on

defendant or his clothing (TT II 231-232). Defendant's DNA was not found under

Hood's nail clippings (TT II 213, 252). The pink liquid found on the floor was

compared to the pink stain on defendant's tshirt, via a gas chromatograph/mass

spectrometer, and an analyst testified that, while chemically similar, each stain

possessed a chemical the other did not (TT II 268). Dozens of photographs of

the Chrysler, the exterior and interior of said apartment building, and the interior

of Apartment 9 were submitted (TT I 272, II 11).

Other residents of the building were called. Andrew Reese was a friend and

neighbor of Hood (TT II 49). He testified that Hood owned the flat screen

television found in said Chrysler (TT II 53). Reese identified Hood for police and

described Hood's apartment after the shooting as "disheveled" (TT II 56-58).

Reese helped clean Hood's apartment after the shooting and found no "shells"

(TT II 76). Reese's 'wife,' Mary Woods, heard nothing unusual before she saw

the police outside (IT II 84-86).

Julia Montier-Washington was another neighbor of Mr. Hood (TT II 218). From

inside her apartment, on the day in question, around noon, she heard what

sounded like a man and woman fighting inside Hood's apartment (TT II 220,

222). It was loud enough to cause her to phone her landlord; she then heard

what sounded like two firecrackers (TT II 221). Within five minutes the police

arrived (TT II 223).

Hood's roommate, his cousin Colmonta Smith, testified that when she left the

apartment that morning the television found in said Chrysler was inside Hood's

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entertainment center (TT III 36). The temperature was in the 90s and Hood had

a habit of leaving his door open to get a breeze (TT III 38-39). She denied

knowing defendant or McCloud (TT III 44). Whereas Mr. Reese testified that

Hood sold drugs (IT II 69), Smith denied that Hood used or sold drugs (TT III 34,

42). She testified, "As far as I know, [Hood] was taking morphine for mental

problems or whatever and whatnot" (TT III 45).

The Defense

The position of the defense was that: defendant was not with McCloud; that he

was never inside the apartment building; that he saw the television when driving

by; that he tried to put it into his car; that he saw a gun laying nearby and picked

it up; that he saw the officer and fled because he was on probation (TT I 246;

defense opening).

The defense called Avian Stephens (defendant's brother), Geneva Cook

(Avian's girlfriend), and Kiara Whitfield (defendant's girlfriend). All three testified

they had never seen defendant with a firearm (TT III 12, 73, 90). All three

testified that defendant drove Avian and Geneva to a job fair in the Flint area on

the day in question (TT III 7-9, 71-73, 86-87). Avian and Geneva were

dropped-off at about 11 :00 a.m. (TT III 9, 73). All three said defendant was

driving the Chrysler found outside the apartment building (TT III 12-13, 75, 91).

Avian further testified that there was an innocent explanation for why defendant

was at said apartment building - Avian asked defendant to look at a Monte Carlo

parked outside the building because he was interested in purchasing it (TT III

74, 76-77). Kiara further testified that she was the owner of said Chrysler (TT

III 84). She was with defendant when he dropped-off Avian and Geneva, and

then left her at her cousin's home at 11 :30 a.m. (TT III 86-87). Defendant was

to return at 2:00 p.m. (TT III 88).

The defense called Officer Steve Howell who repeatedly admitted that, during

defendant's preliminary examination, he repeatedly testified that he took

defendant into custody and that defendant had no weapon on him (TT III 103,

107, 109, 114). He testified at trial that he was mistaken, that he had taken

McCloud into custody (TT III 104, 122). He blamed the purported error on the

fact that his subpoena had defendant's name on it and he was distracted by a

hunting trip he had planned (TT III 116, 122). He testified:

A: I made a mistake.

Q: Because you was [sic] in a hurry to take your kid hunting?

A: Absolutely

Q: And even when the prosecutor showed you your report you told him that

the report was wrong 'cause it Mr. Stephens who you apprehended, correct?

A: I said I made a mistake [TT III 126].

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Rebuttal

Officer Dumanois testified that he saw Officer Howell with McCloud, not

defendant, when he arrived at the scene (TT 141-142). McCloud wore a white

tank top, blue jeans, black baseball hat and black Nikes whereas defendant had

no shirt on, and wore blue jeans, white and grey high tops and a large

wristwatch (TT III 141, 143).

Conclusion

Outside the presence of the jury, the defendant was told that he had a right to

testify (TT III 128). Defense counsel told the court that defendant decided to not

testify (TT III 137).

Def. App. Br. 1–7 (footnotes omitted).

Following his convictions and sentencing, Stephens filed an appeal of right with the

Michigan Court of Appeals raising the same claims presented on habeas review. The

Michigan Court of Appeals denied relief on those claims and affirmed Stephens's

convictions. People v. Stephens, No. 310243, 2013 WL 3942562 (Mich. Ct. App. July 30,

2013). Stephens then filed an application for leave to appeal with the Michigan Supreme

Court, which was denied in a standard order. People v. Stephens, 495 Mich. 915 (2013).

Stephens filed his federal habeas petition in February 2015. Respondent has since

filed an answer to the petition and the state court record. ECF Nos. 7, 8.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified 28

U.S.C. § 2241 et seq., provides the standard of review for federal habeas cases brought

by state prisoners. The AEDPA provides:

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

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

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

the adjudication of the claim—

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

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

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

of the facts in light of the evidence presented in the State court

proceeding.

28 U.S.C. §2254(d) (1996).

"A state court's decision is 'contrary to' . . . clearly established law if it 'applies a rule

that contradicts the governing law set forth in [Supreme Court cases]' or if it 'confronts a set

of facts that are materially indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives at a result different from [that] precedent.'" Mitchell v. Esparza, 540

U.S. 12, 15–16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405–06

(2000)).

"[T]he 'unreasonable application' prong of § 2254(d)(1) permits a federal habeas court

to 'grant the writ if the state court identifies the correct governing legal principle from [the

Supreme] Court but unreasonably applies that principle to the facts of petitioner's case." 

Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413). But for a

federal court to find a state court's application of Supreme Court precedent "unreasonable,"

the state court's decision must have been more than incorrect or erroneous — its

application must have been "objectively unreasonable." See Wiggins, 539 U.S. at 520–21.

"AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, and

demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559

U.S. 766, 773 (2010) (internal quotation marks and citations omitted).

The United States Supreme Court has held that "a state court's determination that a

claim lacks merit precludes federal habeas relief so long as fairminded jurists could

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disagree on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.

86, 101 (2011) (internal citation and quotation marks omitted). The Supreme Court has

emphasized that "even a strong case for relief does not mean the state court's contrary

conclusion was unreasonable." Id. A habeas court "must determine what arguments or

theories supported or . . . could have supported, the state court's decision; and then it must

ask whether it is possible fairminded jurists could disagree that those arguments or theories

are inconsistent with the holding in a prior decision" of the Supreme Court. Id. To obtain

federal habeas relief, a state prisoner must therefore show that the state court's rejection

of a claim "was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement." Id.

Federal judges "are required to afford state courts due respect by overturning their

decisions only when there could be no reasonable dispute that they were wrong." Woods

v. Donald, 135 S. Ct. 1372, 1376 (2015). 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. Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).

Section 2254(d)(1) limits a federal court's review to determining whether the state

court's decision comports with clearly established federal law as determined by the

Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at 412.

Section 2254(d) "does not require a state court to give reasons before its decision can be

deemed to have been 'adjudicated on the merits.'" Harrington, 562 U.S. at 100, nor does

it "require citation of [Supreme Court] cases—indeed, it does not even require awareness

of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court

decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002).

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Because the requirements of "clearly established law" are to be determined solely by

Supreme Court precedent, "circuit precedent does not constitute 'clearly established

Federal law, as determined by the Supreme Court,'" and "[i]t therefore cannot form the

basis for habeas relief under AEDPA." Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012)

(per curiam).

Lastly, a state court's factual determinations are presumed correct on federal habeas

review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear and

convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Habeas

review is "limited to the record that was before the state court." Cullen v. Pinholster, 563

U.S. 170, 181 (2011).

ANALYSIS

A. Sufficiency of the Evidence

Stephens first asserts that he is entitled to habeas relief because the prosecution

failed to present sufficient evidence to support his convictions. Specifically, he asserts that

the prosecution failed to establish that he was in the apartment at the time of the crime and

evidence was therefore insufficient to establish malice and participation in a robbery.

Respondent contends that this claim lacks merit.

The federal due process clause "protects the accused against conviction except upon

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

he is charged." In re Winship, 397 U.S. 358, 364 (1970). The question on a sufficiency-ofthe-evidence claim 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 v. Virginia, 443 U.S. 307, 319 (1979). The Jackson

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standard must be applied "with explicit reference to the substantive elements of the criminal

offense as defined by state law." Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006)

(quoting Jackson, 443 U.S. at 324 n.16).

A federal habeas court views this standard through the framework of 28 U.S.C.

§ 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). A sufficiency-of-theevidence challenge under the AEDPA must therefore "survive two layers of deference to

groups who might view facts differently" than a reviewing court on habeas review: the

factfinder at trial and the state court on appellate review — provided those determinations

are reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). "[I]t is the

responsibility of the jury—not the court—to decide what conclusions should be drawn from

the evidence admitted at trial." Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam). "A

reviewing court does not re-weigh the evidence or re-determine the credibility of the

witnesses whose demeanor has been observed by the trial court." Matthews v. Abramajtys,

319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).

Accordingly, the "mere existence of sufficient evidence to convict . . . defeats a petitioner's

claim." Id. at 788–89.

Under Michigan law, a person who commits murder during the perpetration of a felony

is guilty of first-degree murder. Mich. Comp. Laws § 750.316. The elements of felony

murder are: (1) the killing of a human being, (2) with the intent to kill, to do great bodily

harm, or to create a very high risk of death or great bodily harm with knowledge that death

or great bodily harm was the probable result [i.e., malice], (3) while committing, attempting

to commit, or assisting in the commission of any of the felonies specifically enumerated in

the statute. See Matthews, 319 F.3d at 789 (citing People v. Carines, 460 Mich. 750, 759

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(1999)). The facts and circumstances of the killing may give rise to an inference of malice,

including evidence that the defendant used a deadly weapon. Id. The elements of the

underlying felony of armed robbery are: (1) an assault, (2) a felonious taking of property

from the victim's presence or person, (3) while the defendant is armed with a weapon

described in the statute. See Mich. Comp. Laws § 750.529; People v. Rodgers, 248 Mich.

App. 702, 707 (2001). Identity is an element of every offense. People v. Yost, 278 Mich.

App 341, 356 (2008). Direct or circumstantial evidence and reasonable inferences arising

from that evidence may constitute satisfactory proof of the elements of an offense,

including identity and intent or state of mind. See People v. Nowack, 462 Mich. 392,

399–400 (2000); People v. Dumas, 454 Mich. 390, 398 (1997) (intent); People v. Jolly, 442

Mich. 458, 466 (1993) (same); People v. Kern, 6 Mich. App. 406, 409–10 (1967) (identity).

The use of a lethal weapon supports an inference of an intent to kill. People v. Turner, 62

Mich. App. 467, 470 (1975).

Applying the Jackson standard, the Michigan Court of Appeals ruled that the

prosecution presented sufficient evidence to support Stephens's convictions. The court

explained in relevant part:

After reviewing the trial evidence, we conclude that there was sufficient

evidence to support defendant's convictions. A rational trier of fact could

conclude that defendant was in the victim's apartment, he participated in taking

the television from the victim's apartment, and he shot the victim in the process.

Flint Police Sergeant David Bender saw defendant and another male near a

white Chrysler Sebring parked by the apartment complex on July 7, 2010

around 12:45 pm. Each had his shirt around his face like a mask, and Bender

saw the handle of a gun sticking out of defendant's pocket. When Bender

stopped his patrol car, the two men ran.

When defendant was detained and arrested, he still had the gun, a .357–caliber

Magnum revolver, in his front pocket and his shirt was around his shoulder. The

trunk of the Chrysler contained a flat screen television, and defendant's

fingerprint was found on the television. The door to the apartment building was

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ajar, and the victim's body was found in apartment nine. The victim's apartment

was disheveled and the television was missing from the entertainment center.

The shirt defendant had when arrested had a pink stain on it, and police found

an overturned cup containing a pink substance in the victim's apartment. The

pink stain on the shirt and the pink liquid in the cup were both food items and,

although they contained many of the same compounds, each also contained

one component not found in the other item. The expert who tested the two

substances stated that the stain on the shirt could have been contaminated by

other materials from the shirt. He could not say whether or not the stain was

made by the liquid found in the apartment.

In addition, the bullet removed from the victim and the test bullet fired from the

revolver that defendant possessed when arrested showed similar tool marks,

indicating that the bullet that killed the victim was fired from the gun defendant

possessed. Inside the white Chrysler Sebring, police found several live

.38–caliber Special rounds, which could be fired from a .357–caliber Magnum

gun. The bullet removed from the victim was also in the .38–caliber class. The

jury could infer malice from the use of the gun and the fact that defendant

engaged in the armed robbery. Carines, 460 Mich at 759, 761 n. 5.

Moreover, several witnesses indicated that he was driving his girlfriend's white

Chrysler Sebring that day. Defendant also made incriminating statements when

he asked the police if they could "take him by his father's home" because

defendant wanted to tell his father "goodbye because he wasn't going to see

him for a long time."

Although defendant points to testimony by a different officer who admitted that

he mistakenly testified at the preliminary examination that defendant was the

suspect he arrested on July 7, 2010, and the suspect did not have a gun, the

officer clarified at trial that he was mistaken and he actually arrested the other

suspect, not defendant. We resolve any conflicting evidence in favor of the jury's

verdict and we decline to disturb the jury's resolution of credibility issues. People

v. Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000); Harrison, 283 Mich App

at 377–378.

In addition, defendant's assertion that the other man must have had the gun

used to kill the victim contradicted the trial evidence. The other man did not

have a gun in his possession when arrested; only defendant did. Moreover, the

test bullet fired from defendant's gun showed similar striation marks to the bullet

found in the victim. Drawing all reasonable inferences in support of the verdict,

this strongly suggested that defendant's gun was the one used to kill the victim.

Wolfe, 440 Mich at 515.

Defendant also argues that Bender never saw defendant discard any shell

casings and there were no casings in the gun when defendant was

apprehended, suggesting that someone else shot the victim. The prosecution

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is not required to disprove "every reasonable theory consistent with innocence.

Instead, the prosecution is bound to prove the elements of the crime beyond a

reasonable doubt.... [The prosecution] need only convince the jury 'in the face

of whatever contradictory evidence the defendant may provide.'" Nowack, 462

Mich at 400, quoting People v. Konrad, 449 Mich 263, 273 n. 6; 536 NW2d 517

(1995). Under the circumstances, the jury could reasonably have concluded that

defendant disposed of any spent shell casings before Bender arrived. The fact

that none were found does not render the case against defendant insufficient.

Stephens, 2013 WL 3942562 at *1–3 (footnote omitted).

The state court's decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law or determination of the facts. The police testimony

describing Stephens's suspicious appearance and conduct near the scene, Stephens's

possession of the gun with the expert testimony linking it to the murder, the stain on

Stephens's shirt being similar to liquid spilled in the victim's apartment, and Stephens's

fingerprint on the stolen television, along with reasonable inferences therefrom, was

sufficient to support a finding that Stephens committed the armed robbery and the murder.

Although some of the evidence against Stephens was circumstantial, considered together

with the other evidence, it was sufficient to support his convictions. See, e.g., Britt v.

Howes, No. 09-1597, 2010 WL 5135618, *3 (6th Cir. Dec.16, 2010) (unpublished)

(confirming that circumstantial evidence alone is sufficient to sustain a conviction and deny

habeas relief); United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006) (concluding that

circumstantial evidence can be sufficient to sustain a conviction and stating that such

evidence "need not remove every reasonable hypothesis except that of guilt").

Stephens challenges the credibility of the witnesses and the inferences the jury drew

from the testimony presented at trial, but it is the job of the fact-finder at trial, not a federal

habeas court, to resolve evidentiary conflicts. The jury's verdict, and the Michigan Court of

Appeals' decision affirming that verdict, were reasonable. The evidence presented at trial,

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viewed in a light favorable to the prosecution, established beyond a reasonable doubt that

Stephens committed the crimes. Habeas relief is not warranted on this claim.

B. Effectiveness of Trial Counsel

Stephens also asserts that he is entitled to habeas relief because his trial counsel was

ineffective for failing to object to Flint Police Lieutenant Marcus Mahan's testimony that he

did not pursue other suspects because "all the evidence pointed back to" Stephens and

Curtis McCloud. Stephens believes that the investigating officer's testimony was an

improper comment on his guilt. Respondent contends that this claim lacks merit.

The Sixth Amendment to the United States Constitution guarantees a criminal

defendant the right to the effective assistance of counsel. In Strickland v. Washington, 466

U.S. 668 (1984), the United States Supreme Court set forth a two-prong test for

determining whether a habeas petitioner has received ineffective assistance of counsel.

First, a petitioner must prove that counsel's performance was deficient. This requires a

showing that counsel made errors so serious that he or she was not functioning as counsel

as guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the petitioner

must establish that counsel's deficient performance prejudiced the defense. Counsel's

errors must have been so serious that they deprived the petitioner of a fair trial or appeal.

Id. 

To satisfy the performance prong, a petitioner must identify acts that were "outside

the wide range of professionally competent assistance." Id. at 690. The reviewing court's

scrutiny of counsel's performance is highly deferential. Id. at 689. There is a strong

presumption that trial counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment. Id. at 690. The petitioner

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bears the burden of overcoming the presumption that the challenged actions were sound

trial strategy.

As to the prejudice prong, a petitioner must show that "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would

have been different." Id. at 694. A reasonable probability is one that is sufficient to

undermine confidence in the outcome of the proceeding. Id. "On balance, the benchmark

for judging any claim of ineffectiveness must be whether counsel's conduct so undermined

the proper functioning of the adversarial process that the [proceeding] cannot be relied on

as having produced a just result." Id. at 686.

The Supreme Court has confirmed that a federal court's consideration of ineffective

assistance of counsel claims arising from state criminal proceedings is quite limited on

habeas review due to the deference accorded trial attorneys and state appellate courts

reviewing their performance. "The 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 (citations omitted). "When § 2254(d) applies, the question is not whether

counsel's actions were reasonable. The question is whether there is any reasonable

argument that counsel satisfied Strickland's deferential standard." Id.

The Michigan Court of Appeals cited the Strickland standard when it denied relief on

Stephens's ineffective-assistance claim. The court found that Stephens failed to show that

trial counsel erred or that he was prejudiced by counsel's conduct. It explained:

In the present case, the prosecutor questioned Flint Police Lieutenant Marcus

Mahan, the officer in charge of investigating the case, regarding the gathering

of DNA evidence, sending evidence in for testing, receiving reports from the

laboratory, interviewing witnesses, and other actions he took as part of his

investigation of the case. The prosecutor asked whether he had any other

suspects in the case or whether he pursued any other suspects, and Mahan

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indicated that he did not. When the prosecutor asked why Mahan did not pursue

any other suspects, he responded that "[t]here was [sic] no other suspects that

we were advised of and all our—all the evidence pointed back to [defendant and

the other man arrested that day]."

Opinion testimony by a lay witness is generally permitted if it is rationally based

on the perception of the witness and helpful to the jury in gaining a clear

understanding of testimony or a fact in issue. MRE 701. Nevertheless, "the

issue of an accused's guilt or innocence is a question for the trier of fact."

People v. Bragdon, 142 Mich App 197, 199; 369 NW2d 208 (1985). See also

People v. Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007) (A witness may

not comment on another witness's credibility because credibility issues are for

the jury to decide.).

Defense counsel did not render ineffective assistance in the present case. The

prosecutor did not state that, in her personal opinion, defendant was guilty. See

People v. Humphreys, 24 Mich App 411, 418–419; 180 NW2d 328 (1970) (A

prosecutor may not argue to the jury that he personally believes that the

defendant is guilty or that the defendant would not be on trial if the prosecutor

or police believed that the defendant was innocent). Nor did the challenged

questions and testimony imply that the prosecutor had some special knowledge

about Mahan's truthfulness. People v. Bennett, 290 Mich App 465, 476–478;

802 NW2d 627 (2010).

Mahan likewise did not offer his personal opinion regarding defendant's guilt.

Rather, his testimony related the actions he took with respect to his

investigation. Under similar circumstances, this Court found no error when the

prosecutor questioned the officer in charge about his investigation after defense

counsel inquired whether the officer had shown witnesses pictures of other

suspects. People v. Moreno, 112 Mich App 631, 635–636; 317 NW2d 201

(1981). As in Moreno, the prosecutor's questions in the present case responded

to defendant's assertion that the police focused him as a suspect because they

could not catch the "real two guys" who were responsible. Id. at 635. Similarly,

in People v. Heft, 299 Mich App 69, 81–83; 829 NW2d 266 (2012), this Court

concluded that the defendant's counsel did not render ineffective assistance by

failing to object to the officers' testimony that they believed the defendant's

statement (that he was out for a walk) was untruthful, unreasonable, and did not

make sense given that it was 1:30 a.m. and zero degrees outside. This Court

held that the testimony did not constitute improper opinion about the defendant's

guilt because it explained their investigation from their personal perceptions. Id.

Accordingly, defendant has failed to demonstrate that counsel's performance

was deficient. Trakhtenberg, 493 Mich at 51. Because the prosecutor's

questions and Mahan's responses were proper, counsel was not required to

raise a futile motion or objection. People v. McGhee, 268 Mich App 600,

627–629; 709 NW2d 595 (2005). Moreover, as stated supra, ample evidence

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connected defendant to the crimes; defendant has not demonstrated a

reasonable probability that the outcome would have been different, even

assuming for the sake of argument that counsel should have objected. 

Stephens, 2013 WL 3942562 at *3–4.

The state court's decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law or determination of the facts. Stephens cannot

establish that trial counsel erred or that he was prejudiced by counsel's conduct because

Lieutenant Mahan's testimony was properly admitted under state law and its admission did

not violate due process. Under Michigan law, lay opinion testimony is admissible if it is "(a)

rationally based on the perception of the witness and (b) helpful to a clear understanding

of the witness' testimony or the determination of a fact in issue." Mich. R. Evid. 701. The

opinions and reliable conclusions of investigating police officers who have not been

qualified as experts have also been deemed admissible under Michigan law when the

testimony is based upon observations and not dependent upon scientific expertise. See

People v. Oliver, 170 Mich. App. 38, 49–50 (1988).

Here, Mahan did not offer a personal opinion about Stephens's guilt; rather he

discussed the actions that he took (and did not take) in investigating the crime. Mahan's

testimony that he did not pursue other suspects because all the evidence pointed to

Stephens and McCloud was thus appropriate to explain his investigation and to assist the

jury in resolving the factual issues at trial. Counsel cannot be deemed ineffective for failing

to raise a meritless claim or objection. Hoffner v. Bradshaw, 622 F.3d 487, 499 (6th Cir.

2010); Bradley v. Birkett, 192 F. App'x 468, 475 (6th Cir. 2006). Moreover, even if counsel

erred, Stephens cannot establish that he was prejudiced by counsel's conduct given the

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significant evidence of guilt presented at trial. Stephens fails to establish that trial counsel

was ineffective under the Strickland standard. Habeas relief is not warranted on this claim.

CONCLUSION

The Court concludes that Stephens is not entitled to federal habeas relief on his

claims and that his habeas petition must be denied.

Before Stephens may appeal the Court's decision, a certificate of appealability must

issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A federal district court must issue

or deny a certificate of appealability when denying relief. Rule 11(a) of the Rules Governing

2254 Cases, 28 U.S.C. foll. § 2254. A certificate of appealability may issue "only if the

applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.

§ 2253(c)(2). When a court denies a habeas claim on the merits, the substantial showing

threshold is met if the petitioner demonstrates that reasonable jurists would find the court's

assessment of the constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S.

473, 484–85 (2000). "A petitioner satisfies this standard by demonstrating that . . . jurists

could conclude the issues presented are adequate to deserve encouragement to proceed

further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Having conducted the requisite

review, the Court concludes that Stephens fails to make a substantial showing of the denial

of a constitutional right as to his habeas claims and will therefore deny a certificate of

appealability. The Court likewise deny leave to proceed in forma pauperis on appeal

because an appeal cannot be taken in good faith. See Fed. R. App. P. 24(a).

ORDER

WHEREFORE it is hereby ORDERED that the petition for a writ of habeas corpus

(document no. 1) is DENIED and DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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

pauperis.

SO ORDERED.

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: November 29, 2016

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

and/or counsel of record on November 29, 2016, by electronic and/or ordinary mail.

s/David P. Parker 

Acting Case Manager

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