UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

AUGUSTUS ROBINSON, #235216,

Petitioner,

CASE NO. 2:15-CV-11288

v. HONORABLE PAUL D. BORMAN

LORI GIDLEY,

Respondent.

_______________________________/

OPINION AND ORDER DENYING THE HABEAS PETITION,

DENYING A CERTIFICATE OF APPEALABILITY, AND

DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

Michigan prisoner Augustus Robinson (“Petitioner”) has filed a pro se

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his

two first-degree criminal sexual conduct convictions which were imposed

following a jury trial in the Kent County Circuit Court. Petitioner was sentenced,

as a third habitual offender, to concurrent terms of six to 30 years imprisonment. 

In his pleadings, Petitioner raises claims concerning the late endorsement of two

witnesses, the alleged absence of counsel during the pre-trial period, the

effectiveness of trial counsel, the trial court’s refusal to allow him to represent
himself, the exclusion of certain evidence, his restraint in shackles before the jury,

and the trial court’s factual findings regarding the use of shackles. For the reasons

stated herein, the Court finds that his claims lack merit and denies the habeas

petition. The Court also denies a certificate of appealability and denies leave to

proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner’s convictions arise from his conduct in performing oral sex upon

the 15-year-old daughter of his former girlfriend at the girl’s residences in Grand

Rapids, Kent County, Michigan in 2008 and 2009. Defense counsel on direct

appeal summarized the trial testimony as follows:

IT claimed to know the complaining witness, TJ, since the eighth

grade. She visited TJ often and at one point slept at her house nearly

every other weekend. [Trial 4/19/11, p 34-35]. IT claimed Mr.

Robinson was always at the house during their visits. [Trial 4/19/11, p

37]. According to IT, she awakened one night and saw Mr. Robinson

standing in the doorway of TJ’s bedroom. [Trial 4/19/11, p 39-40]. 

Although it was dark, she claimed to know with certainty that it was

Mr. Robinson in the doorway and not one of TJ’s other relatives.

[Trial 4/19/11, p 40-41]. She thought his conduct was “weird,” but

rolled over and went back to sleep. IT claimed that because she sleeps

heavily, she was not aware of anything unusual happening during the

rest of the night. [Trial 4/19/11, p 42-43].

TJ was sixteen at the time of trial. [Trial 4/19/11, p 58]. She testified

that her family once lived at a house located on Hamilton Street, and

that she resided there with her mother, four brothers and Mr.

Robinson. She believed she was fifteen years-old and in the eighth

grade when they lived at that house. [Trial 4/19/11, p 58]. According

2
to TJ, she and her mother did not have a positive relationship at all

during that time. [Trial 4/19/11, p 62]. She claimed that one night

while her mother was out and she and IT were asleep in the same bed

in her room, Mr. Robinson knelt down and tapped her on the shoulder.

When she awakened, he asked her to come downstairs for a minute

because he needed to show her something. [Trial 4/19/11 62-63]. TJ

testified that she was not fully awake and inquired of her mother’s

whereabouts, but claimed that Mr. Robinson repeated his request. She

claimed that he then rubbed her leg, pulled down her pants and

performed oral sex on her. [Trial 4/19/11 63]. TJ did not try to alert IT

(who was directly next to her), and instead pushed Mr. Robinson

away. She testified that she could smell liquor on Mr. Robinson’s

breath, and that when he was finished he asked TJ if she liked it.

[Trial 4/19/11, p 64]. According to her, he then left the room and went

back downstairs. TJ did not mention the incident to her mother, based

on her belief that her mother would be angry and side with Mr.

Robinson, or that he would try to have another person harm her. [Trial

4/19/11, p 67, 88].

Their family eventually moved to an apartment on Hidden Creek

Circle Drive. TJ expressed confusion over whether she was fifteen or

sixteen at the time, but believed that the next encounter occurred the

following spring, in March or May. [Trial 4/19/11, p 69]. According

to her, she arrived home around six o’clock in the evening. Her

mother was visiting a friend, and her younger brothers were outside

playing. She claimed that she and Mr. Robinson were in the house

alone, when he approached her and asked if she remembered what

happened last time. TJ did not respond. Based on his request,

however, she smoked marijuana with Mr. Robinson and then headed

to her room to do laundry. When she turned to leave the room again,

she claimed that Mr. Robinson was standing right behind her. She

went to check on her brothers, but he stopped her, locked the door,

picked her up, and took her to her room. Mr. Robinson forced her to

lay down on the bed, removed her jeans, and performed oral sex on

her again. [Trial 4/19/11, p 70-71]. She began to push him off of her

because she heard her brothers ringing the doorbell. He finally let her

get up and she went to let them in. [Trial 4/19/11, p 72].

3
According to TJ she was only compelled to tell her mother about the

alleged assaults when she overheard Calandra and Mr. Robinson

discussing sending her to juvenile boot camp. She was angry because

Mr. Robinson was encouraging the move, and her mother was

agreeing to it. She turned up her music and told her mother “I’m not

the only one keepin’ secrets around here.” TJ began to cry and

disclosed the alleged incidents to her mother at that time. [Trial

4/19/11, p 72]. Her mother ordered Mr. Robinson to leave, and the

police came to the house the same night. [Trial 4/19/11, p 73]. On

cross-examination, TJ admitted that she had been lying to her mother

about various things, and that her mother doubted her truthfulness as a

result. [Trial 4/19/11, p 76].

Calandra Jones claimed she could not recall the exact year – 2007 or

2008 -- that she and Mr. Robinson began dating. [Trial 4/19/11, p 95].

She noted that right before TJ’s birthday, her daughter disclosed the

alleged sexual abuse. Nevertheless, she waited ten to fourteen days

before she contacted the police. [Trial 4/19/11, p 96-97, 100]. What

stood out to Calandra was TJ’s claim that Mr. Robinson said “I want

to show you something.” According to her, that was his way of

indicating to Calandra that he was interested in sex. [Trial 4/19/11, p

98]. Initially, Calandra lashed out and looked at her daughter as the

other woman. [Trial 4/19/11, p 99].

When she confronted Mr. Robinson with the information, she claimed

he did not deny it. He merely said, “you’re going to believe her.”

[Trial 4/19/11, p 100].

Over defense objection, the prosecution presented testimony from CJ,

TJ’s younger brother. The basis for the objection was that TJ and

another witness, Tom Cottrell, were belatedly endorsed by the

prosecution – a fact that the government readily acknowledged. [Trial

4/20/11, p 4-6]. Nevertheless, they contended that the amendment was

justified given the evolving nature of Mr. Robinson’s defense, which

was initially based on Mr. Robinson having an alibi. (Appendix A,

Motion for Admission of Late Endorsed Witnesses). They argued that

because counsel attacked the reporting delay in opening argument,

they needed to proffer the testimony of Cottrell as an expert witness to

4
rebut that contention. No excuse was offered as it related to CJ, but

the Court was not persuaded that the defense should be surprised by

his testimony. Ultimately, Judge Sindt agreed with the prosecution

and allowed both witnesses to appear. [Trial 4/20/11, p 10-16].

According to CJ, who was twelve at the time of the trial, he recalled a

day when Mr. Robinson directed he and his brothers to stop watching

television and to go outside. They all complied, but CJ eventually had

to use the bathroom so he headed back in. He found that the door was

locked and he thus had to ring the bell. Mr. Robinson came to the door

after two or three minutes, which struck him as odd since CJ did not

have a key and was not accustomed to the door being locked while

they were outside. [Trial 4/20/11, p 19-21].

The final prosecution witness, Tom Cottrell, testified as an expert in

the field of “child sexual abuse and offender behavior,” ostensibly to

rebut the defense suggestion that TJ’s reporting delay indicated

untruthfulness. [Trial 4/20/11, p 29]. On this point, he testified that

reporting is extremely common in child sexual abuse cases and stems

from a variety of circumstances, including the possibility that a child

feels threatened; that disclosure puts another person at risk; that they

cannot anticipate the family’s response; or the feeling that the child

can endure it on their own. [Trial 4/20/11, p 31]. The questioning went

far afield of this subject, however, as Mr. Cottrell explained (1) why

an offender would feel empowered by engaging in sex abuse in front

of a third person without being discovered; (2) why a child sex abuse

victim might comply with the demands of the perpetrator because of

feeling threatened, complicit, or joyful about having the attention; (3)

why a child sex abuse victim might respond to the behavior with

defiance; (4) and why it is common for the mother of a sex abuse

victim to view her daughter as “the other woman.” [Trial 4/20/11, p

32-36]. He also noted that generally speaking, children are trained to

follow the rules given to them by adults. [Trial 4/20/11, p 38].

Mr. Robinson elicited testimony from Chiquita Braggs on his behalf.

She noted that there came a time when it was very hot in the spring or

summer of 2009 when Mr. Robinson approached her in need of a

place to live. He moved in with her for a period of time, and then went

5
on to stay with his sister in Lansing. Ms. Braggs believed that this

likely occurred in June or July of 2009. [Trial 4/20/11, p 42-46]. Trial

counsel asked Ms. Braggs to describe her impression of Mr.

Robinson’s character and the kind of person he was, and she replied

that he was “a nice person for the most part.” She had no concerns

with him being around her adolescent girls without supervision. [Trial

4/20/11, p 46]. She offered no testimony about his character for

truthfulness, peacefulness or otherwise. Nevertheless, on

cross-examination, the prosecution attempted to impeach the witness’s

knowledge by informing her, in front of the jury, that Mr. Robinson

had a past conviction for unarmed robbery. [Trial 4/20/11, p 56]. No

limiting instruction was requested or received at the end of the proofs

to properly instruct the jury on how to evaluate the back-door

introduction of Mr. Robinson’s criminal record.

Mr. Robinson’s sister, Rosa Robinson, was the last witness to testify.

She noted that Mr. Robinson came to stay with her twice – once to

house-sit in May of 2009, and later in July of 2009 for less than a

month. Thereafter, he went on to live with her sister, Lucille and

remained in the Lansing area. [Trial 4/20/11, p 64].

Defense Counsel’s App. Br. pp. 1-6 (footnotes omitted, edited to use minors’

initials).

At the close of trial, the jury convicted Petitioner of two counts of firstdegree criminal sexual conduct. The trial court subsequently sentenced him, as a

third habitual offender, to concurrent terms of six to 30 years imprisonment on

those convictions.

Following sentencing, Petitioner filed an appeal of right with the Michigan

Court of Appeals raising the same claims presented in his habeas petition. The

Michigan Court of Appeals remanded the case to the trial court to allow Petitioner

6
to file a motion for a new trial and for the trial court to conduct an evidentiary

hearing to determine whether Petitioner was in restraints while the jury was present

in the courtroom and, if so, whether any of the deliberating jurors saw them. The

trial court held the evidentiary hearing and denied the motion for a new trial

because the testimony of Petitioner’s counsel and court personnel did not support

Petitioner’s claim that he was restrained in shackles in front of the jury in the

courtroom. People v. Robinson, No. 10-02818-FC (Kent Co. Cir. Ct. Oct. 15,

2012). The Michigan Court of Appeals thereafter ruled that Petitioner’s claims

lacked merit and affirmed his convictions. People v. Robinson, No. 304878, 2013

WL 3814352 (Mich. Ct. App. July 23, 2013) (unpublished). Petitioner filed an

application for leave to appeal with the Michigan Supreme Court, which was

denied, People v. Robinson, 495 Mich. 915, 840 N.W.2d 353 (2013), as was his

motion for reconsideration. People v. Robinson, 495 Mich. 997, 845 N.W.2d 97

(2014). Petitioner also filed a petition for a writ of certiorari with the United States

Supreme Court, which was denied. Robinson v. Michigan, _ U.S. _, 135 S. Ct. 272

(2014).

Petitioner thereafter filed his federal habeas petition raising the following

claims:

I. The trial court violated Petitioner’s right to a fair trial by

allowing the prosecutor to add a new expert and corroborating

7
witness on the Friday before trial.

II. Petitioner is entitled to a new trial where defense counsel

provided constitutionally ineffective assistance by eliciting

irrelevant and unnecessary character testimony and opening the

door for the prosecution to inform the witnesses and the jury of

Petitioner’s unarmed robbery conviction.

III. The trial court violated Petitioner’s Sixth Amendment right to

represent himself at trial when it refused to let Petitioner

represent himself because he had not graduated from law school

and passed the bar.

IV. Petitioner was denied his Sixth Amendment right to effective

assistance of trial counsel by his trial lawyer’s failure to visit

him in jail during the eight months before trial after she moved

to withdraw.

V. Petitioner was denied his Sixth Amendment right to effective

assistance of trial counsel by his trial lawyer’s failures

including:

a. Failure to impeach TJ with her statement to police and

preliminary examination testimony;

b. Failure to impeach IT with her prior statement to police

that she and TJ were sleeping in separate beds, not in the

same bed as they both testified at trial;

c. Failure to impeach IT with her prior inconsistent

statements about the date, where she told police the

events she witnessed happened in 2009 but testified that

they happened in 2008;

d. Failure to point out to the jury the inconsistencies

between the stories of TJ and her brother, CJ.

e. Failure to investigate whether TJ had a negative

8
urinalysis drug result during March or April 2009, to

refute her testimony that she smoked marijuana with

defendant the day she claimed that he assaulted her in

March 2009;

f. Failure to object when the prosecutor elicited from

Calandra Jones that defendant had been incarcerated;

g. Asking Rosa Robinson whether defendant had been in

legal trouble and her replying “aggravated assault.”

VI. Petitioner was denied a fair trial in violation of the Fourteenth

Amendment when the Court allowed the prosecution to present

evidence that Petitioner and Calandra Jones had discussed

sending TJ to a juvenile “boot camp” but would not let the

defense present evidence of why.

VII. Petitioner was denied a fair trial under the Fourteenth

Amendment when he was brought before the jury in shackles.

VIII. The trial court’s findings of fact are clearly erroneous and they

are not what the Michigan Court of Appeals ordered, which was

to determine whether the jurors saw Petitioner in restraints.

Respondent has filed an answer to the petition contending that it should be denied

because the claims lack merit and the shackles claim is procedurally defaulted. 

Petitioner has filed a reply to that answer.

III. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal

courts must use when considering habeas petitions brought by prisoners

9
challenging their state court convictions. The AEDPA provides in relevant part:

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

custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim--

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

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or

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

determination of the facts in light of the evidence presented

in the State court proceeding.

28 U.S.C. §2254(d) (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)); see also Bell v. Cone,

535 U.S. 685, 694 (2002). “[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.

10
Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also

Bell, 535 U.S. at 694. However, “[i]n order for a federal court find to a state

court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s

decision must have been more than incorrect or erroneous. The state court’s

application must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at

520-21 (citations omitted); see also Williams, 529 U.S. at 409. The “AEDPA thus

imposes a ‘highly deferential standard for evaluating state-court rulings,’ and

‘demands that state-court decisions be given the benefit of the doubt.’” Renico v.

Lett, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333, n. 7); Woodford v.

Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

A state court’s determination that a claim lacks merit “precludes federal

habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of

the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has

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

contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S.

63, 75 (2003)). 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

11
disagree that those arguments or theories are inconsistent with the holding in a

prior decision” of the Supreme Court. Id. Thus, in order to obtain habeas relief in

federal court, a state prisoner must show that the state court's rejection of his claim

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

comprehended in existing law beyond any possibility for fairminded

disagreement.” Id.; see also White v. Woodall, _ U.S. _, 134 S. Ct. 1697, 1702

(2014). 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, _ U.S. _, 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, _ U.S. _, 136 S. Ct. 1149, 1152 (2016).

Section 2254(d)(1) limits a federal habeas court’s review to a determination

of 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; see also Knowles v. Mirzayance, 556 U.S.

111, 122 (2009) (noting that the Supreme Court “has held on numerous occasions

that 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

12
established by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26

(2008) (per curiam)); Lockyer, 538 U.S. at 71-72. 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. Furthermore, it

“does not 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); see also Mitchell, 540 U.S. at 16. 

The requirements of clearly established law are to be determined solely by

Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly

established Federal law as determined by the Supreme Court’” and it cannot

provide the basis for federal habeas relief. Parker v. Matthews, 567 U.S. 37,

48-49 (2012) (per curiam); see also Lopez v. Smith, _ U.S. _ 135 S. Ct. 1, 2 (2014)

(per curiam). The decisions of lower federal courts, however, may be useful in

assessing the reasonableness of the state court’s resolution of an issue. Stewart v.

Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d

667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich.

2002).

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

13
habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this

presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d

358, 360-61 (6th Cir. 1998). Moreover, habeas review is “limited to the record

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

IV. Discussion

A. Late Endorsement of Witnesses (Habeas Claim I)

Petitioner first asserts that he is entitled to habeas relief because the trial

court allowed the late addition of two witnesses, the expert Tom Cottrell and the

victim’s brother CJ. Respondent contends that this claim lacks merit.

There is no general constitutional right to discovery in a criminal case. See

Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (denying due process claim of a

defendant who was convicted with aid of surprise testimony from an accomplice

who was an undercover agent); United States v. Presser, 844 F.2d 1275, 1281 (6th

Cir. 1988) (citing Weatherford). A decision regarding the endorsement of a

witness generally constitutes a state law matter within the trial court’s discretion. 

See Hence v. Smith, 37 F. Supp. 2d 970, 982 (E.D. Mich. 1999) (citing cases);

Whalen v. Johnson, 438 F. Supp. 1198 (E.D. Mich. 1977) (it is not a fundamental

error to permit a prosecutor to endorse a witness during trial even though the

prosecutor previously filed an affidavit stating that the witness was not material). 

14
A federal court may only grant habeas relief to a person who is “in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2254(a). Alleged trial court errors in the application of state evidentiary law are

generally not cognizable as grounds for federal habeas relief. See Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991) (“it is not the province of a federal habeas

court to reexamine state-court determinations on state-law questions”); Serra v.

Michigan Dep’t of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). “Trial court

errors in state procedure or evidentiary law do not rise to the level of federal

constitutional claims warranting relief in a habeas action, unless the error renders

the proceeding so fundamentally unfair as to deprive the petitioner of due process

under the Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir.

2004) (quoting McGuire, 502 U.S. at 69-70); see also Wynne v. Renico, 606 F.3d

867, 871 (6th Cir. 2010) (citing Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir.

2007)); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). 

The Michigan Court of Appeals denied relief on this claim concluding that

the trial court did not abuse its discretion in finding good cause for allowing the

late endorsement of the witnesses and that Petitioner failed to establish that he was

prejudiced by the court’s ruling. See Robinson, 2013 WL 3814352 at *1.

The state court’s denial of relief is neither contrary to Supreme Court

15
precedent nor an unreasonable application of federal law or the facts.1

 As an

initial matter, the Court notes that it will not disturb the state court’s determination

that the late endorsement of the two witnesses was proper under Michigan law. 

State courts are the final arbiters of state law and federal courts do not intervene in

such decisions. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago, 809

F.2d 326, 328 (6th Cir. 1987); see also Bradshaw v. Richey, 546 U.S. 74, 76

(2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Habeas relief does

not lie for perceived errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68

(1991).

Moreover, Petitioner fails to demonstrate that his trial was rendered

fundamentally unfair by the late endorsement of the witnesses. The record

indicates that the prosecution added expert witness Tom Cottrell as a witness to

rebut a defense first raised by defense counsel during opening statements and that

both he and the victim’s brother CJ were known to the defense before trial. See

4/20/11 Trial Tr., pp. 4-6, 13-15. Additionally, Petitioner fails to show that he

was prejudiced by the late addition of the witnesses. Defense counsel turned

down the trial court’s offer of an adjournment to allow her to interview the

1

The Court notes that it would reach the same result under a de novo

standard of review.

16
witnesses and said that she was aware of their potential testimony and prepared to

proceed. Id. at 17. Petitioner was not deprived of exculpatory evidence nor

denied the ability to prepare an adequate defense. The late addition of the two

witnesses did not deprive Petitioner of a fundamentally fair trial. Habeas relief is

not warranted on this claim.

B. Self-Representation (Habeas Claim III)

Petitioner also asserts that he is entitled to habeas relief because the trial

court refused to allow him to represent himself at trial after he expressed

dissatisfaction with his appointed defense counsel. Respondent contends that this

claim lacks merit.

The Sixth Amendment to the United States Constitution guarantees a

criminal defendant the right to the assistance of counsel, U.S. CONST. AMEND. VI;

Powell v. Alabama, 287 U.S. 45, 53 (1932); see also Argersinger v. Hamlin, 407

U.S. 25, 37 (1972); and gives an indigent criminal defendant the right to the

assistance of court-appointed counsel. Gideon v. Wainwright, 372 U.S. 335, 343

(1963). The Sixth Amendment also grants a criminal defendant the right to

self-representation if such a choice is voluntarily and intelligently made. Martinez

v. Court of Appeal of California, 528 U.S. 152, 153 (2000); Faretta v. California,

422 U.S. 806, 819 (1975); Hill v. Curtin, 792, F.3d 670, 677 (6th Cir. 2015) (en

17
banc). The right to counsel and the right to defend oneself are viewed as

correlative rights in that waiver of one necessarily constitutes an assertion of the

other. See King v. Bobby, 433 F.3d 483, 490 (6th Cir. 2006); United States v.

Cromer, 389 F.3d 662, 680 (6th Cir. 2005).

 A waiver of the right to counsel must be voluntary, knowing and

intelligent. Iowa v. Tovar, 541 U.S. 77, 88 (2004); Faretta, 422 U.S. at 835;

Jones v. Jamrog, 414 F.3d 585, 593 (6th Cir. 2005). “The determination of

whether there has been an intelligent waiver of the right to counsel must depend,

in each case, upon the particular facts and circumstances surrounding that case,

including the background, experience, and conduct of the accused.” Johnson v.

Zerbst, 304 U.S. 458, 464 (1938); see also Tovar, 541 U.S. at 92. A request for

self-representation must be “clear and unequivocal” before the right to counsel

may be deemed waived. United States v. Cromer, 389 F.3d 662, 683 (6th Cir.

2004). Additionally, a defendant who seeks to proceed pro se must generally be

aware of the risks of self-representation so that “he knows what he is doing and

his choice is made with eyes open.” Faretta, 422 U.S. at 835.

18
The Michigan Court of Appeals denied relief on this claim finding that

Petitioner told the trial court that he wanted to “fire” defense counsel, but “never

requested, much less made an unequivocal request, to represent himself.” 

Robinson, 2013 WL 3814352 at *2.

The state court’s decision is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. The record confirms

that while Petitioner expressed some dissatisfaction with defense counsel prior to

the start of trial, he never asked to represent himself. See 6/1/10 Status Conf. Tr.,

pp. 4-9. Petitioner fails to establish that he was denied his constitutional right to

self-presentation. Habeas relief is not warranted on this claim.

C. Effectiveness of Trial Counsel (Habeas Claims II, IV, V)

Petitioner also asserts that he is entitled to habeas relief because trial

counsel failed to sufficiently meet with him before trial and was ineffective during

the course of trial. Respondent contends that these claims lack merit.

The Sixth Amendment to the United States Constitution guarantees a

criminal defendant the right to the effective assistance of counsel. U.S. Const.

Am. VI. 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

19
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 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

20
adversarial process that the [proceeding] cannot be relied on as having produced a

just result.” Strickland, 466 U.S. 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 (internal and end

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.

With regard to the pre-trial period, Petitioner alleges that trial counsel failed

to meet with him for several months before trial after she unsuccessfully moved to

withdraw as counsel (due to Petitioner’s threats) and that this amounted to the

denial of counsel at a critical stage of the proceedings in violation of United States

v. Cronic, 466 U.S. 648 (1984). 

Citing Cronic and Strickland, the Michigan Court of Appeals denied relief

on this claim. The court explained:

In People v. Frazier, 478 Mich. 231, 243; 733 NW2d 713 (2007), the

Michigan Supreme Court discussed the difference between the

21
ineffective assistance tests articulated in Strickland, 466 U.S. 668,

and Cronic, 466 U.S. 648:

[m]ost claims of ineffective assistance of counsel are

analyzed under the test developed in Strickland, supra.

Under this test, counsel is presumed effective, and the

defendant has the burden to show both that counsel's

performance fell below objective standards of

reasonableness, and that it is reasonably probable that

the results of the proceeding would have been different

had it not been for counsel's error. Strickland, supra at

687, 690, 694. But in Cronic, supra at 659–662, the

United States Supreme Court identified three rare

situations in which the attorney's performance is so

deficient that prejudice is presumed. One of these

situations involves the complete denial of counsel, such

as where the accused is denied counsel at a “critical

stage” of the proceedings. Id. at 659. “For purposes of

distinguishing between the rule of Strickland and that of

Cronic, [the] difference is not of degree but of kind.”

Bell v. Cone, 535 U.S. 685, 697; 122 S Ct 1843; 152 L.

Ed. 2d 914 (2002).

Specifically, in Cronic, 466 U.S. at 658–659, the United States

Supreme Court held that:

[t]here are, however, circumstances that are so likely to

prejudice the accused that the cost of litigating their

effect in a particular case is unjustified.

Most obvious, of course, is the complete denial of

counsel. The presumption that counsel's assistance is

essential requires us to conclude that a trial is unfair if

the accused is denied counsel at a critical stage of his

trial.

The Supreme Court recognized that it had “uniformly found

constitutional error without any showing of prejudice when counsel

22
was either totally absent, or prevented from assisting the accused

during a critical stage of the proceeding.” Cronic, 466 U.S. at 659 n

25.

We recognize that the pretrial stage of a criminal proceeding is a

critical stage. People v. Dixon, 263 Mich. App. 393, 397; 688 NW2d

308 (2004) (adopting the ruling in Mitchell v. Mason (On Remand),

325 F3d 732, 743 (CA 6, 2003).). Regardless, defendant fails to show

that he was denied assistance of counsel during that stage. The record

does not show that counsel failed to visit defendant in jail during that

time. Further, the record shows some correspondence between

defendant and counsel and that counsel remained engaged with the

case during the pretrial stage. Accordingly, defendant has not shown

he was denied the assistance of counsel during the pretrial period.

Cronic, 466 U.S. at 658–659. 

Premised on counsel's alleged failure to visit, defendant also claims

counsel did not adequately investigate the case. Again, along with an

absence of record evidence that counsel failed to visit him, defendant

fails to show that counsel failed to prepare for trial or explain in what

ways her trial preparation was inadequate. Thus, defendant has not

established the factual predicate for this claim, People v. Hoag, 460

Mich. 1, 6; 594 NW2d 57 (1999), and fails to show that his attorney's

representation fell below an objective standard of reasonableness. 

Toma, 462 Mich. at 302.

Robinson, 2013 WL 3814352 at *2-3.

The state court’s decision is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. The Supreme Court

has limited the presumed prejudice standard to three types of ineffective assistance

claims: (1) complete denial of counsel; (2) government interference with the right

to counsel; and (3) conflicts of interest. See Smith v. Robbins, 528 U.S. 259, 287

23
(2000) (citing Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 659 & n. 25). The

first category, the complete denial of counsel, encompasses both actual and

constructive denials of counsel, and a constructive denial of counsel can occur

when “counsel entirely fails to subject the prosecution’s case to meaningful

adversarial testing.” Cronic, 466 U.S. at 659. The Cronic presumption “applies

only where defense counsel completely or entirely fails to oppose the prosecution

throughout the guilt or penalty phase as a whole.” Benge v. Johnson, 474 F.3d

236, 247 (6th Cir. 2007) (citing Bell v. Cone, 535 U.S. 685, 697 (2002)). In order

for Cronic, rather than Strickland, to apply, “the attorney’s failure must be

complete.” Bell, 535 U.S. at 697. The distinction is between “bad lawyering” and

“no lawyering,” Woodard v. Collins, 898 F.2d 1027, 1028 (5th Cir. 1990); see

also Moss v. Hofbauer, 286 F.3d 851, 861 (6th Cir. 2002), and the difference is

not one of degree, but one of kind. Bell, 535 U.S. at 697.

In this case, trial counsel’s minimal meetings with Petitioner before trial did

not amount to a complete failure to represent Petitioner during the pre-trial period

or provide a defense. Rather, the record shows that counsel met with Petitioner in

person before his threatening behavior, see Prison Visitation Record, Pet. Attach.

J, then continued to correspond with him and work on his case during the pre-trial

period, see Counsel’s Withdrawal Mot., Pet. Attach. Y; Kent Co. Cir. Ct. Dkt. No.

24
10-02818-FC, and met with him briefly before trial. Pet. Br. p. 45. The

presumption of prejudice does not apply. Petitioner must therefore show that he

was actually prejudiced by counsel’s minimal contacts with him during the pretrial period.

Petitioner fails to allege any facts indicating that he was prejudiced by the

lack of personal visits with trial counsel (which arose from his own threatening

behavior). Conclusory allegations, without evidentiary support, do not provide a

basis for habeas relief. See, e.g., Cross v. Stovall, 238 F. App’x 32, 39-40 (6th

Cir. 2007); Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998) (conclusory

allegations of ineffective assistance of counsel do not justify federal habeas

relief); see also Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (bald

assertions and conclusory allegations do not provide sufficient basis for an

evidentiary hearing in habeas proceedings).

Petitioner further asserts that trial counsel failed to sufficiently investigate

his case and prepare for trial. Well-established federal law requires that defense

counsel conduct a reasonable investigation into the facts of a defendant’s case, or

make a reasonable determination that such investigation is unnecessary. Wiggins,

539 U.S. at 522-23; Strickland, 466 U.S. at 691; Stewart v Wolfenbarger, 468

F.3d 338, 356 (6th Cir. 2007); Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). 

25
The duty to investigate “includes the obligation to investigate all witnesses who

may have information concerning . . . guilt or innocence.” Towns, 395 F.3d at

258. That being said, decisions as to what evidence to present and whether to call

certain witnesses are presumed to be matters of trial strategy. When making

strategic decisions, counsel’s conduct must be reasonable. Roe v. Flores-Ortega,

528 U.S. 470, 481 (2000); see also Wiggins, 539 U.S. at 522-23. The failure to

call witnesses or present other evidence constitutes ineffective assistance of

counsel only when it deprives a defendant of a substantial defense. Chegwidden

v. Kapture, 92 F. App’x 309, 311 (6th Cir. 2004); Hutchison v. Bell, 303 F.3d 720,

749 (6th Cir. 2002). In this case, Petitioner fails to explain what counsel failed to

investigate during the pre-trial period and/or how further investigation would have

uncovered information which would have benefitted his defense and affected the

outcome at trial. As noted, conclusory allegations are insufficient to warrant

habeas relief.2

Petitioner asserts that trial counsel was ineffective for eliciting character

testimony from witness Chiquita Braggs which opened the door to the prosecutor

eliciting testimony that he had been convicted of unarmed robbery. Citing the

2

To the extent that Petitioner raises specific claims about counsel’s

performance at trial related to this issue, the Court addresses them infra. 

26
Strickland standard, the Michigan Court of Appeals denied relief on this claim. 

The court explained in relevant part:

Here, defense counsel asked defendant's friend, Chiquita Braggs, for

her opinion of defendant's character. Defense counsel successfully

elicited that Braggs had no concerns about leaving her daughters

alone with defendant. This fact supported defendant's theory that the

victim was lying at her mother's request as revenge for defendant

leaving her mother. Defense counsel chose to introduce this character

evidence to support the defense, taking the risk that the prosecutor

could introduce defendant's unarmed robbery conviction. Defense

counsel's decision in this regard was a matter of trial strategy. Horn,

279 Mich. App. at 39. Defense counsel's representation did not fall

below an objective standard of reasonableness. Toma, 462 Mich. at

302. Further, defendant cannot demonstrate that, but for any alleged

error by counsel with respect to questioning Bragg, the outcome of

trial would have been different. Id. The testimony about the unarmed

robbery was brief, the evidence was minimally prejudicial, and the

case was not a mere credibility contest between defendant and the

victim.

Robinson, 2013 WL 3814352 at *2.

The state court’s decision is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. Trial counsel

reasonably decided to elicit testimony from Braggs that she was comfortable

leaving her daughters alone with Petitioner in an effort to support the defense

claim that Petitioner was not a threat to underage girls and the victim was lying

about the assaults. While such character testimony opened the door to the

disclosure of Petitioner’s unarmed robbery conviction, counsel may have

27
reasonably decided that the benefit outweighed the cost, particularly since

unarmed robbery is not akin to criminal sexual assault and the character testimony

was strong and relevant to the charges in this case. This was a matter of trial

strategy which will not be second-guessed on habeas review. The fact that trial

counsel’s strategy was ultimately unsuccessful does not mean that counsel was

ineffective. See Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002) (an

ineffective assistance of counsel claim “cannot survive so long as the decisions of

a defendant’s trial counsel were reasonable, even if mistaken”). Habeas relief is

not warranted on this claim.

Petitioner also asserts that trial counsel was ineffective for failing to

impeach the victim with her police statement and preliminary examination

testimony, for failing to impeach the victim’s friend with her police statement, and

for failing to point out inconsistencies between the victim’s and her brother’s

version of events. Citing the Strickland standard, the Michigan Court of Appeals

denied relief on these claims finding that Petitioner failed to support his

allegations and/or that counsel’s actions were matters of trial strategy. The court

explained in relevant part:

Defendant asserts that defense counsel was ineffective because she

failed to impeach the victim and her friend with their statements to

police. However, the police reports to which defendant refers are not

a part of the record and, therefore, no mistake is apparent from the

28
record. Id. 

Defendant argues that counsel should have impeached the victim

with her preliminary examination testimony. The victim testified at

the preliminary examination that, during one incident, she talked on

the telephone with a friend, she smoked marijuana with defendant,

and then defendant performed oral sex on her. At trial, the victim

testified that she smoked marijuana with defendant, then talked on

the telephone with a friend, and then defendant performed oral sex on

her. Defendant argues that counsel should have impeached the victim

with her different timeline. Defense counsel successfully

cross-examined the victim regarding her history of dishonesty with

her mother, why the victim never tried to wake up a nearby friend

during the incident in the upstairs bedroom, and why it took the

victim so long to report the abuse. Because defense counsel chose to

cross-examine the victim about other important issues, she may have

chosen not to focus on a small discrepancy in the order of events.

Defendant has failed to rebut the presumption that defense counsel's

decision was a matter of trial strategy. Horn, 279 Mich. App. at 39. 

Defendant claims that defense counsel was ineffective because she

failed to emphasize in her closing argument an inconsistency in the

testimony of the victim and her brother. At trial, the victim testified

that, after defendant assaulted her in the apartment, defendant let her

get up to let her brothers into the apartment. The victim's brother

testified about an incident when he was locked out of the apartment

for two or three minutes before defendant let him inside. Defendant

cannot demonstrate that counsel was ineffective in failing to point out

this minor discrepancy during closing argument. “A decision

concerning what evidence to highlight during closing argument” is a

matter of trial strategy. Horn, 279 Mich. App. at 39.

Robinson, 2013 WL 3814352 at *3-4. 

The state court’s decision is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. The record indicates

29
that counsel contested the testimony of the victim and the other prosecution

witnesses at trial. While counsel did not point out some inconsistencies among

those statements and testimony, she may have reasonably determined that they

were minor and not worth pursuing in an effort to focus on larger credibility

issues, such as TJ’s troubles with her mother arising from her lies and improper

behavior, see 4/19/11 Trial Tr., pp. 75-81, IT’s inability to recall dates and times,

id. at 47-48, whether IT might have been mistaken about seeing Petitioner (as

opposed to the victim’s brother or cousin) in the bedroom doorway, id. at 50-51,

and the fact that TJ did not say anything about Petitioner that night or the next

day. Id. at 55-56. Additionally, counsel may have reasonably decided not to

impeach IT’s testimony that she and TJ were in the same bed with IT’s police

statement that they were in separate beds because the jury might find it hard to

believe that Petitioner would assault TJ while she was in the same bed as IT and

that IT would not realize what was happening at the time. Counsel’s strategy, in

fact, is reflected in her closing argument. See 4/20/11 Trial Tr. pp. 97-99. 

Moreover, the cross-examination of witnesses is generally a matter of trial

strategy left to the professional discretion of counsel. See Jackson v. Bradshaw,

681 F.3d 753, 765 (6th Cir. 2012) (stating that “most cross-examinations can be

improved but if that were the standard of constitutional effectiveness, few would

30
be the counsel whose performance pass muster” and citing cases).

Similarly, counsel may have reasonably decided not to discuss the

discrepancy in TJ’s and CJ’s testimony over who opened the door to the locked

apartment in an effort to focus on the fact that CJ did not notice anything unusual

that day and that TJ was doing the same thing when he went outside and when he

returned. See 4/20/11 Trial Tr., p. 99. Petitioner fails to overcome the

presumption that counsel’s conduct was sound trial strategy. He also fails to show

that additional impeachment/argument as to these matters would have affected the

outcome or that he was otherwise prejudiced by counsel's conduct. Petitioner fails

to establish that counsel was ineffective.

Petitioner next asserts that trial counsel was ineffective for failing to

investigate whether the victim had a negative drug test during March or April,

2009 to refute her testimony that she smoked marijuana with Petitioner the day

before he assaulted her in March, 2009. The Michigan Court of Appeals denied

relief on this claim finding that Petitioner provided “no proof” that counsel failed

to investigate such a test and failed to establish the factual predicate for this claim. 

Robinson, 2013 WL 3814352 at *4. 

The state court’s decision is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. First, Petitioner fails

31
to substantiate his claim that counsel did not investigate this issue. Second, and

more importantly, he cannot establish prejudice by any failure to investigate. TJ

testified that Petitioner’s second assault occurred in March or May of 2009, see

4/19/11 Trial Tr., pp. 68-72, but the court order requiring TJ to submit to drug

testing was not signed until July 20, 2009 (following the June 30, 2009 hearing). 

See Court Order, Pet. Attach. P. Consequently, any investigation by counsel into

drug testing results would not have uncovered evidence relevant to the case.

Petitioner provides no drug testing results in support of this claim. As noted,

conclusory allegations are insufficient to warrant habeas relief. Petitioner fails to

establish that counsel was ineffective in this regard.

Petitioner also asserts that trial counsel was ineffective for failing to object

when the prosecutor asked Calandra Jones an open-ended question about their

living situation and she responded that Petitioner was incarcerated for a period of

time. The Michigan Court of Appeals denied relief on this claim stating:

Defendant argues that counsel should have objected when the

prosecutor asked the victim's mother an open-ended question, which

led to testimony that defendant was previously incarcerated.

Defendant's argument that the prosecutor's question was per se

objectionable solely because it called for a narrative answer is

meritless. See People v. Wilson, 119 Mich. App. 606, 616–617; 326

NW2d 576 (1982) (recognizing that “[t]he mode and order of

interrogation of witnesses is governed by MRE 611” and that

“[n]othing in the rule specifically precludes testimony because of its

narrative form”). Defendant has not shown that counsel's

32
performance fell below an objective standard of reasonableness.

Toma, 462 Mich. at 302. Likewise, we reject defendant's argument

that counsel should have objected to testimony elicited by the

open-ended question. “[T]here are times when it is better not to

object and draw attention to an improper comment.” People v. Unger,

278 Mich. App. 210, 242; 749 NW2d 272 (2008) (quotation omitted).

Robinson, 2013 WL 3814352 at *4. 

The state court’s decision is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. First, the prosecutor’s

open-ended question was proper under state evidentiary rules and there was no

reason to anticipate that the witness would volunteer the incarceration information

such that counsel had no basis for objection. Counsel cannot be deemed deficient

for failing to make a futile or meritless objection or motion. See Coley v. Bagley,

706 F.3d 741, 752 (6th Cir. 2014) (“Omitting meritless arguments is neither

professionally unreasonable nor prejudicial.”); United States v. Steverson, 230

F.3d 221, 225 (6th Cir. 2000). Second, once the witness answered, counsel may

have decided not to object in order to avoid drawing additional attention to the

matter. Such conduct was reasonable under the circumstances. Petitioner fails to

establish that counsel was ineffective.

Lastly, Petitioner asserts that trial counsel was ineffective for failing to

investigate Rosa Robinson and then asking her whether Petitioner had been in

legal trouble, which led her to mentioning an aggravated assault. The Michigan

33
Court of Appeals denied relief on this claim finding that “there is no indication in

the record” that counsel failed to investigate the witness such that Petitioner failed

to establish the factual predicate for his claim and concluding that counsel was not

ineffective for failing to object to the testimony. Robinson, 2013 WL 3814352 at

*4. 

The state court’s decision is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. Petitioner fails to offer

any evidence detailing the extent of counsel’s investigation of Rosa Robinson or

to allege any facts to show what counsel did or did not investigate before trial. As

noted, conclusory allegations are insufficient to warrant habeas relief. 

Additionally, as with the other reference to Petitioner’s criminal history, counsel

may have decided not to object to the testimony or request that it be stricken in

order to avoid drawing attention to the matter. Such conduct was reasonable

given that the reference was brief and involved a completely different and

unrelated offense. Moreover, even if counsel erred in some fashion, Petitioner

fails to establish that he was prejudiced by counsel’s conduct. The references to

Petitioner’s criminal history were brief and did not involve any crimes similar to

the charged offenses. The trial court also instructed the jury about the elements of

the charged offenses and the proper consideration of the evidence. Jurors are

34
presumed to follow the court’s instructions. See Penry v. Johnson, 532 U.S. 782,

799 (2001) (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)); United States

v. Powell, 469 U.S. 57, 66 (1984) (“Jurors ... take an oath to follow the law as

charged, and they are expected to follow it.”). Petitioner fails to establish that

counsel was ineffective under the Strickland standard. Habeas relief is not

warranted on these claims.

D. Exclusion of Evidence (Habeas Claim VI)

Petitioner next asserts that he is entitled to habeas relief because the trial

court allowed the prosecution to present evidence that Calandra Jones and

Petitioner discussed sending TJ to a juvenile boot camp, but then excluded

evidence about why they considered doing so. Respondent contends that this

claim lacks merit.

As noted, alleged trial court errors in the application of state evidentiary law

are generally not cognizable as grounds for federal habeas relief. Estelle, 502 U.S.

at 67-68; Serra, 4 F.3d at 1354. “Trial court errors in state procedure or

evidentiary law do not rise to the level of federal constitutional claims warranting

relief in a habeas action, unless the error renders the proceeding so fundamentally

unfair as to deprive the petitioner of due process under the Fourteenth

Amendment.” McAdoo, 365 F.3d at 494 (quoting McGuire, 502 U.S. at 69-70);

35
see also Wynne, 606 F.3d at 871) (citing Bey, 500 F.3d at 519-20); Bugh, 329 F.3d

at 512.

The Michigan Court of Appeals denied relief on this claim. The court

explained:

At trial, the victim testified that some time after the two incidents of

abuse occurred, she overheard her mother and defendant discussing

the possibility of sending her to juvenile boot camp. The victim grew

angry with both her mother and defendant, and told her mother about

the incidents of abuse. During cross-examination, defense counsel

asked the victim if she knew “why boot camp was being

discussed...?” The prosecutor objected on relevance grounds, and the

trial court sustained the objection. Defendant contends that, if the

victim had been allowed to testify, she would have testified that she

smoked marijuana in violation of her probation. We hold that this

evidence was irrelevant. MRE 401. 

The record reveals that defendant raised the possibility of boot camp

and that the victim's mother agreed with the idea. Thus, absent the

specific reason, the relevant fact at issue—the victim's motive to

lie—was placed squarely before the jury. Any testimony about the

alleged reason for boot camp would not add to any additional

motivation for the victim to lie about her allegations of abuse.

Accordingly, although this was a close evidentiary issue, the trial

court did not abuse its discretion in excluding the evidence because a

decision on a close evidentiary question ordinarily cannot be an

abuse of discretion.

Robinson, 2013 WL 3814352 at *5.

The state court’s denial of relief is neither contrary to Supreme Court

precedent nor an unreasonable application of federal law or the facts. First, to the

extent that Petitioner asserts that the trial court erred under Michigan law, he

36
merely alleges a violation of state law which does not justify federal habeas relief. 

See, e.g., Bey, 500 F.3d at 519. As discussed, state courts are the final arbiters of

state law and the federal courts will not intervene in such matters. Lewis, 497 U.S.

at 780; Oviedo, 809 F.2d at 328; see also Bradshaw, 546 U.S. at 76; Sanford, 288

F.3d at 860. Habeas relief does not lie for perceived errors of state law. Estelle,

502 U.S. at 67-68.

Second, Petitioner fails to establish a federal due process violation. The

evidence was not particularly relevant and the jury was well aware that TJ was

upset about the threat of being sent to a juvenile boot camp regardless of the

reason for it. Moreover, the jury was also well aware of the fact that TJ had

smoked marijuana and had been in trouble for lying and skipping school based

upon TJ’s own testimony. See 4/19/11 Trial Tr., pp. 70-71, 75-76. The defense

thus had a sufficient opportunity to challenge TJ’s motivations and credibility

based upon the evidence presented at trial. Petitioner was not denied the ability to

present his defense. He fails to show that the trial court erred and/or that the trial

court’s ruling deprived him of a fundamentally fair trial. Habeas relief is not

warranted on this claim.

E. Jury View of Handcuffs/Shackles (Habeas Claims VII, VIII)

Lastly, Petitioner asserts that he is entitled to habeas relief because the jury

37
viewed him in handcuffs/shackles during the jury instructions at trial and,

relatedly, that the trial court’s factual findings concerning this issue were clearly

erroneous and not in keeping with the appellate court remand. Respondent

contends that the handcuffs/shackles claim is procedurally defaulted and that both

claims lack merit.

It is well-settled that federal courts on habeas review “are not required to

address a procedural-default issue before deciding against the petitioner on the

merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v.

Singletary, 520 U.S. 518, 525 (1997)); see also Arias v. Hudson, 589 F.3d 315,

316 (6th Cir. 2009) (citing Lambrix, 520 U.S. at 525). The Supreme Court has

explained the rationale behind such a policy: “Judicial economy might counsel

giving the [other] question priority, for example, if it were easily resolvable

against the habeas petitioner, whereas the procedural-bar issue involved

complicated issues of state law.” Lambrix, 520 U.S. at 525. In this case, the

procedural default issue is intertwined with the substantive issues and the

substantive issues are easier to resolve. Consequently, the interests of judicial

economy are best served by addressing the merits of these claims.

Generally, a criminal defendant “should not be compelled to go to trial in

prison or jail clothing because of the possible impairment” of the presumption of

38
innocence guaranteed by the due process right to a fair trial. Estelle v. Williams,

425 U.S. 501, 504 (1976). This principle extends to a defendant’s appearance in

handcuffs and shackles. United States v. Waldon, 206 F.3d 597, 607 (6th Cir.

2000). Due process precludes the use of visible physical restraints upon a

defendant “absent a trial court determination, in the exercise of its discretion, that

they are justified by a state interest specific to a particular trial.” Deck v.

Missouri, 544 U.S. 622, 629 (2005) (citing Holbrook v. Flynn, 475 U.S. 560,

568-69 (1986); Illinois v. Allen, 397 U.S. 337, 343-44 (1970)). Handcuffs or

shackles on a defendant are permitted to prevent the escape of the accused, to

protect people in the courtroom, and to maintain order during the trial. See

Kennedy v. Cardwell, 487 F.2d 101, 110-111 (6th Cir. 1973). Exposure of the

jury to a defendant in handcuffs or shackles requires a mistrial only when the

exposure is so “inherently prejudicial” as to deny the defendant’s constitutional

right to a fair trial. See Waldon, 206 F.3d at 607.

Citing Deck and relevant state law, the Michigan Court of Appeals denied

relief on this claim. The court explained in relevant part:

At the evidentiary hearing, the parties agreed that defendant wore a

remotely activated custody and control belt (RACC belt), which

would give defendant a mild shock if he disrupted the trial.

Defendant had threatened his trial counsel and it appears that the belt

was necessary for defense counsel's safety. However, the trial court

had not made a finding on the record that shackling was necessary to

39
prevent injury. Dunn, 446 Mich. at 425. Importantly however,

defendant wore the belt under his shirt and both a deputy and the

prosecutor testified that the belt was not visible during trial. Thus,

defendant is not entitled to a new trial because he has not shown he

was prejudiced because he wore a RACC belt during the trial.

Carines, 460 Mich. at 763; Horn, 279 Mich. App. at 36. 

The primary issue at the evidentiary hearing was whether defendant

wore handcuffs in front of the jury. Defendant testified that he wore

handcuffs in front of the jury during the jury instructions, that he told

defense counsel about the handcuffs, and that defense counsel briefly

discussed the handcuff situation with the trial court. One of

defendant's sisters, Rosa Robinson, testified that she saw defendant

wearing handcuffs during jury instructions, but she also said that

defense counsel did not raise the issue with the trial court. Another of

defendant's sisters, Lucille Edelen, testified that after jury

instructions, she saw defendant's hands clasped in front of him as he

left the courtroom, causing Edelen to infer that defendant was

wearing handcuffs. Edelen also said that defense counsel did not say

anything to the trial court about the restraints. Rosa and Edelen's

testimony conflicted with defendant's testimony that defense counsel

raised the issue of the handcuffs with the trial court. Also, Rosa's

testimony conflicted with a statement in an affidavit that defense

counsel raised the matter with the trial court. Moreover, despite the

fact that Rosa and Edelen sat next to each other in court, their

testimony differed about whether the handcuffs were visible. Defense

counsel testified that she did not believe that defendant wore

handcuffs during the course of the trial and did not remember

bringing the issue to the trial court's attention. Further, two deputies

testified that, based on the trial court's standard practices, defendant

would not have been in handcuffs in front of jurors, and a deputy

testified that she did not remember bringing defendant into the

courtroom wearing handcuffs. 

The trial court had to make a credibility determination about the

conflicting witness testimony. The court ruled that the evidence did

not support a finding that defendant was in handcuffs in front of the

jury. If the “resolution of a disputed factual question turns on the

40
credibility of witnesses or the weight of the evidence, we will defer to

the trial court, which had a superior opportunity to evaluate these

matters.” People v. Sexton (After Remand), 461 Mich. 746, 752; 609

NW2d 822 (2000). The trial court did not clearly err in finding that

defendant was not handcuffed in front of the jury. People v. Buie, 491

Mich. 294, 304; 817 NW2d 33 (2012). Thus, defendant has not

shown error, no[r] that the court violated his constitutional rights.

Carines, 460 Mich. at 764; Deck, 544 U.S. at 629; Dunn, 446 Mich.

at 425-426.

Robinson, 2013 WL 3814352 at *5-6.

The state court’s decision is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. First, the use of the

RACC belt was justified by Petitioner’s threats to harm defense counsel and was

worn under his clothes so as not to be visible to the jury during trial. Second, the

testimony from defense counsel and the two courtroom deputies supported the

trial court’s determination that Petitioner was not in handcuffs in front of the jury. 

While Petitioner offered testimony from himself and his sisters in support of his

claim, the trial court had reason to doubt their credibility given the inconsistencies

in their accounts and the fact that nothing in the trial record supports Petitioner’s

assertion that defense counsel objected at trial. Moreover, it is the job of the state

trial court, not this Court on habeas review, to resolve such conflicts. The state

courts’ factual determinations are presumed correct on habeas review, 28 U.S.C. §

2254(e)(1), and Petitioner has not rebutted this presumption with clear and

41
convincing evidence.

Additionally, to the extent that Petitioner asserts that the trial court failed to

follow the dictates of the appellate court’s remand order or otherwise erred in

conducting the evidentiary hearing under state law, he fails to state a claim upon

which relief may be granted. As previously discussed, perceived violations of

state law do not provide a basis for federal habeas relief. Estelle, 502 U.S. at 67-

68. State courts are the final arbiters of state law and the federal courts will not

intervene in such matters. Lewis, 497 U.S. at 780; Oviedo, 809 F.2d at 328; see

also Bradshaw, 546 U.S. at 76; Sanford, 288 F.3d at 860. 

Furthermore, even assuming that an error occurred, such error was

harmless. For purposes of federal habeas review, a constitutional error that

implicates trial procedures is considered harmless if it did not have a “substantial

and injurious effect or influence in determining the jury's verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993): see also Fry v. Pliler, 551 U.S. 112,

117–18 (2007) (confirming that the Brecht standard applies in “virtually all”

habeas cases); Ruelas v. Wolfenbarger, 580 F.3d 403, 411 (6th Cir. 2009) (ruling

that Brecht is “always the test” in the Sixth Circuit). Harmless error analysis has

been applied to claims involving the use of prison clothing and shackles. See,

e.g., Lakin v. Stine, 431 F.3d 959, 966 (6th Cir. 2005) (citing Supreme Court

42
cases). While the use of the RACC belt was justified by Petitioner’s threats to

counsel, even if it was not, the record indicates that the belt was not visible to the

jury such that it could not have affected the verdict. Even if the jury briefly

viewed Petitioner in handcuffs during the jury instructions, such action did not

have a substantial effect or influence on the jury’s verdict. Petitioner concedes

that the jury knew that he had a criminal history and had been incarcerated and

that he wore prison greens during trial. See Pet. Br. p. 60 (citing the record). 

Seeing him in handcuffs for a brief period of time would not have been surprising

under such circumstances. Moreover, the prosecution presented significant

evidence of guilt, particularly the victim’s testimony and the corroborating

testimony from her friend and her brother. Habeas relief is not warranted on these

claims.

V. Conclusion

For the reasons stated, the Court concludes that Petitioner is not entitled to

federal habeas relief on his claims. Accordingly, the Court DENIES and

DISMISSES WITH PREJUDICE the petition for a writ of habeas corpus.

Before Petitioner may appeal the Court’s decision, a certificate of

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

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

43
showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a

court denies relief 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 v. Cockrell, 537 U.S. 322, 327 (2003). Having

considered the matter, the Court concludes that Petitioner fails to make a

substantial showing of the denial of a constitutional right as to his habeas claims. 

Accordingly, the Court DENIES a certificate of appealability.

Lastly, the Court also DENIES Petitioner leave to proceed in forma

pauperis on appeal as an appeal cannot be take in good faith. See Fed. R. App. P.

24(a). This case is closed.

IT IS SO ORDERED.

s/Paul D. Borman 

Paul D. Borman

United States District Judge

Dated: November 3, 2017

44
CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each

attorney or party of record herein by electronic means or first class U.S. mail on November 3,

2017.

s/Deborah Tofil 

Case Manager

45