UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JONESAFER L. BLANCH, JR.,

Petitioner,

Case Number 14-14085

v. Honorable David M. Lawson

CATHLEEN STODDARD,

Respondent.

________________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

A Wayne County, Michigan jury convicted state prisoner Jonesafer L. Blanch, Jr. of using

a firearm to rob a Detroit bus driver. Blanch now challenges those robbery and firearm convictions

and ensuing prison sentences in a pro se petition for a writ of habeas corpus. He contends that there

was a breakdown in the relationship with his trial attorney, his trial and appellate attorneys were

ineffective, and the prosecutor committed misconduct by arguing facts not in evidence. Warden

Cathleen Stoddard responds that the petitioner did not preserve some of those claims for federal

review and the state courts’ decisions did not contravene federal constitutional law. The state court

record demonstrates that the petitioner’s claims do not warrant habeas relief. Therefore, the Court

will deny the petition for writ of habeas corpus. 

 I.

The criminal information charged the petitioner with armed robbery, being a felon in

possession of a firearm, and possessing a firearm during the commission of a felony. 

Dwayne Bloodworth (“Bloodworth”) was a bus driver for the City of Detroit Department of

Transportation. At trial, he testified that about midnight on November 24, 2009, going into

November 25, 2009, he stepped off his bus on Varjo Street to smoke a cigarette. The petitioner and
another young black man approached him and asked him a question. The petitioner was wearing

a dark blue jacket with light blue sleeves. 

Both young men walked away after making small talk, but they came back while Bloodworth

was still smoking his cigarette outside the door of the bus. The petitioner then pulled out a gun,

pointed the gun at Bloodworth, and said, “You know what time it is cuz.” That meant to give up

everything. Bloodworth responded by putting up his hands, but the petitioner told him to put his

hands down, and he told the other young man to reach in Bloodworth’s pockets. The other man

complied and pulled out Bloodworth’s wallet, which contained $425. The two men then walked

away. They looked back and started running when Bloodworth activated a “call police” sign on his

bus. 

The police arrived within approximately five minutes. Bloodworth described the young

men’s clothing to the police and the black semi-automatic High Point gun that the petitioner had

pointed at him. He also told the police that the petitioner was 18 to 22 years of age, 5’8” tall, and

175 pounds. At some point, he went to the police station and identified someone other than the

petitioner and his accomplice in a group of pictures. He said he intentionally misidentified the

suspects so that the young men who robbed him would get out of jail that night and he “could take

justice in [his] own hands.” At trial, he had no doubt that the petitioner was the man who robbed

him and was wearing the blue coat with light blue sleeves on November 25, 2009.

Detroit police officer Howard W. Sweeney, III, testified that, about midnight on November

24, 2009, going into November 25, 2009, he and another officer were conducting an investigation

at 7478 Varjo Street in Detroit. As a result of some information he received, he was dispatched to

the corner of Van Dyke and Varjo Streets where he spoke with Bloodworth, the bus driver. He

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acquired some information and descriptions from Bloodworth and then went westbound on Varjo

Street to School Street and an alley where the suspects had fled. He entered the backyard at 7478

Varjo Street because there was an open privacy fence there, and he figured that the suspects might

have doubled back there. He retrieved a loaded .45 caliber black High Point handgun from

underneath the back porch at that address. The petitioner’s mother subsequently admitted the

officers at the front of the house. The petitioner and his co-defendant, Mark Taylor, were inside the

house and taken into custody. In his police report, Officer Sweeney described the petitioner as a

black male about twenty-two years old, 5’11” tall, 200 pounds, with black braided hair. 

Sergeant Ryan Lovier of the Detroit Police Department testified that, on November 25, 2009,

he and Sergeant Robert LaLone went to 7478 Varjo Street to search for evidence related to a robbery

that had occurred earlier that morning. The officers received consent to search the home, and in one

of the bedrooms, Lovier observed a dark blue jacket with light blue sleeves. The jacket matched the

description of a jacket worn by the perpetrator of the armed robbery that occurred the previous night. 

Sergeant Robert LaLone testified that he spoke with the petitioner in a detention area on

November 25, 2009. After notifying the petitioner of his constitutional rights, he asked the

petitioner about the robbery of the bus driver at Varjo and Van Dyke on November 25, 2009. The

petitioner told him that someone named Nez had called him and Mark and asked them whether they

wanted to get some money. They said, “Yeah,” and Mark confirmed that he had a gun. Later, Nez

arrived at the petitioner’s house with “John John.” The petitioner, Mark, Nez and John John got in

Nez’s car and went to Nevada Street. When a bus turned the corner and the driver got out of the bus,

he and Mark approached the bus driver and asked the driver a question. Then they walked away,

but Mark encouraged him to take the gun and “do it.” He did not want to do it and told Mark to give

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the gun to John John, who walked up to the bus driver with Mark. Mark then grabbed the gun from

John John and took some things from the man. He met up with Mark and John John on School

Street where Nez had parked. John John got in the car, and Mark handed the wallet to Nez. The

petitioner and Mark ran to the petitioner’s house at 7478 Varjo where Mark put the gun under the

porch. The police arrived about fifteen minutes later. 

 The petitioner told Sergeant LaLone that he thought some money was taken from the bus

driver, but that he had not wanted to be a part of the robbery. He claimed that he had merely stood

at the Van Dyke bus stop or walked slowly down Van Dyke. 

The parties stipulated that the petitioner had previously been convicted of a specified felony

and was ineligible to use or possess a firearm on November 25, 2009. The petitioner did not testify

or present any witnesses. His defense was that the victim’s description of him did not fit him and

that, at most, he was merely present at the time of the robbery. 

The jury convicted the petitioner of all three charges. He was sentenced to prison terms of

six to fifteen years for armed robbery, a concurrent term of one to five years for being a felon in

possession of a firearm, and a consecutive term of five years for possessing a firearm during the

commission of a felony, second offense. 

 On direct appeal, the petitioner argued that he was entitled to a new trial because there was

a breakdown in the relationship with his trial attorney and because the trial judge did not conduct

an adequate inquiry into the breakdown. The Michigan Court of Appeals found no merit in this

claim and affirmed the petitioner’s convictions. People v. Blanch, No. 300508 (Mich. Ct. App. Mar.

13, 2012). The state supreme court denied leave to appeal. People v. Blanch, 492 Mich. 857, 817

N.W.2d 69 (2012). 

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The petitioner raised the same claim in a motion for relief from judgment. His post-judgment

motion also alleged that trial counsel was ineffective because he did not secure the presence of two

witnesses, that the prosecutor violated his right to due process by arguing facts not in evidence, and

that trial counsel was ineffective by not objecting to the prosecutor’s comments. The petitioner also

asserted that appellate counsel was ineffective by not raising all his claims on direct appeal. The

trial court rejected the petitioner’s claims because the claims lacked merit and because the petitioner

previously raised, or could have raised, his claims on direct review. People v. Blanch, No. 09-

031216-01-FC (Wayne Cty. Cir. Ct. July 2, 2013). On appeal from the trial court’s decision, the

petitioner raised only the issues about the prosecutor and the old claim about the breakdown in the

relationship between the petitioner and his trial attorney. The Michigan Court of Appeals denied

leave to appeal on the basis that the petitioner failed to meet the burden of establishing entitlement

to relief under Michigan Court Rule 6.508(D), People v. Blanch, No. 319189 (Mich. Ct. App. Jan.

16, 2014), and the state supreme court denied leave to appeal for the same reason, People v. Blanch,

497 Mich. 867, 853 N.W.2d 366 (2014). 

On October 22, 2014, the petitioner commenced this action, raising the claims that he

presented to the state court on direct appeal and in his motion for relief from judgment. As noted

above, Warden Stoddard contends in her response to the petition that two of the petitioner’s claims

are procedurally defaulted, meaning that he did not raise them properly in the state courts so as to

preserve them for review on the merits by a federal court. 

The “procedural default” argument is a reference to the rule that the petitioner did not raise

all his claims on direct review, and the state trial court’s denial of those claims on that basis is an

adequate and independent ground for the denial of relief under state law, which is not reviewable

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here. Coleman v. Thompson, 501 U.S. 722, 750 (1991). The Court finds it unnecessary to address

this procedural question. It “is not a jurisdictional bar to review of the merits,” Howard v.

Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and “federal courts are not required to address a

procedural-default issue before deciding against the petitioner on the merits,” Hudson v. Jones, 351

F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). The

procedural default will not affect the outcome of this case, and it is more efficient to proceed directly

to the merits.

II.

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.

L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” the

standard of review federal courts must apply when considering an application for a writ of habeas

corpus raising constitutional claims, including claims of ineffective assistance of counsel. See

Wiggins v. Smith, 539 U.S. 510, 520 (2003). Because Blanch filed his petition after the AEDPA’s

effective date, its standard of review applies. Under that statute, if a claim was adjudicated on the

merits in state court, a federal court may grant relief only if the state court’s adjudication “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 if the adjudication

“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)(1)-(2). “Clearly established

Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the

Supreme] Court’s decisions.” White v. Woodall, --- U.S. ---, 134 S. Ct. 1697, 1702 (2014) (internal

quotation marks and citations omitted). “As a condition for obtaining habeas corpus from a federal

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court, a state prisoner must show that the state court’s ruling on the claim being presented in federal

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

existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S.

86, 103 (2011).

The distinction between mere error and an objectively unreasonable application of Supreme

Court precedent creates a substantially higher threshold for obtaining relief than de novo review. 

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) (finding that the state court’s rapid declaration of a mistrial on grounds of jury deadlock

was not unreasonable even where “the jury only deliberated for four hours, its notes were arguably

ambiguous, the trial judge’s initial question to the foreperson was imprecise, and the judge neither

asked for elaboration of the foreperson’s answers nor took any other measures to confirm the

foreperson’s prediction that a unanimous verdict would not be reached” (internal quotation marks

and citations omitted)); see also Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 841 (6th

Cir. 2017); Dewald v. Wriggelsworth, 748 F.3d 295, 298-99 (6th Cir. 2014); Bray v. Andrews, 640

F.3d 731, 737-39 (6th Cir. 2011); Phillips v. Bradshaw, 607 F.3d 199, 205 (6th Cir. 2010); Murphy

v. Ohio, 551 F.3d 485, 493-94 (6th Cir. 2009); Rockwell v. Yukins, 341 F.3d 507, 511 (6th Cir. 2003)

(en banc). Moreover, habeas review is “limited to the record that was before the state court.” 

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

A.

The petitioner first argues that there was a breakdown in his relationship with his trial

attorney and the trial court failed to conduct an adequate inquiry into the breakdown. The petitioner

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asserts that he was not allowed to explain fully his concerns to the trial judge and the trial court

placed docket concerns above those of fairness. The Michigan Court of Appeals adjudicated this

claim on the merits and concluded that the petitioner had not shown good cause for substitution of

counsel and the trial court’s failure to appoint a substitute attorney was not an abuse of discretion. 

The court of appeals also found no merit in the petitioner’s contention that the trial court placed

docket concerns above fairness and did not conduct an adequate inquiry into the alleged breakdown. 

 The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. This

constitutional right is applicable to the states through the Fourteenth Amendment, Serra v. Mich.

Dep’t of Corrs., 4 F.3d 1348, 1351 (6th Cir. 1993) (citing Gideon v. Wainwright, 372 U.S. 335,

344–45 (1963)), and “implicit in this guarantee is the right to be represented by counsel of one’s

own choice.” Linton v. Perini, 656 F.2d 207, 208 (6th Cir. 1981). 

But “[t]he right to the assistance of counsel at trial does not guarantee that a criminal

defendant will be represented by a particular attorney,” whom he does not retain himself. Serra, 4

F.3d at 1351; see also Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989)

(“Petitioner does not, nor could it defensibly do so, assert that impecunious defendants have a Sixth

Amendment right to choose their counsel. The Amendment guarantees defendants in criminal cases

the right to adequate representation, but those who do not have the means to hire their own lawyers

have no cognizable complaint so long as they are adequately represented by attorneys appointed by

the courts.”). “[T]he right to counsel of choice does not extend to defendants who require counsel

to be appointed for them.” United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006). And when,

as in this case, “an accused seeks substitution of [appointed] counsel in mid-trial, he must show good

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cause such as a conflict of interest, a complete breakdown in communication or an irreconcilable

conflict with his attorney in order to warrant substitution.” Wilson v. Mintzes, 761 F.2d 275, 280 

(6th Cir. 1985).

 It is true that “a trial court, acting in the name of calendar control, cannot arbitrarily and

unreasonably interfere with a client’s right to be represented by the attorney he has selected.” 

Linton, 656 F.2d at 209. But a trial court has “wide latitude in balancing the right to counsel of

choice against the needs of fairness and against the demands of its calendar.” Gonzalez-Lopez, 548

U.S. at 152 (internal and end citations omitted); see also United States v. White, 451 F.2d 1225, 1226

(6th Cir. 1971) (“A motion for new court-appointed counsel based upon defendant’s dissatisfaction

with his counsel previously appointed is addressed to the sound discretion of the trial court.”). 

Factors that courts may consider when reviewing substitution motions include: “the

timeliness of the motion; the adequacy of the [trial] court’s inquiry into the defendant’s complaint;

and the asserted cause for that complaint, including the extent of the conflict or breakdown in

communication between lawyer and client (and the client’s own responsibility, if any, for that

conflict).” Martel v. Clair, 565 U.S. 648, 663 (2012). When evaluating the extent of the conflict

between the defendant and his attorney, a court may consider whether the conflict “was so great that

it resulted in a total lack of communication preventing an adequate defense.” United States v. Mack,

258 F.3d 548, 556 (6th Cir. 2001).

The petitioner’s trial attorney was his second appointed attorney. Midway through trial,

defense counsel informed the trial court that the petitioner wanted to testify and to explain some

things. Defense counsel stated that he had advised the petitioner not to testify because he would not

be able to withstand cross-examination. After explaining these things to the petitioner, the petitioner

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had disagreed with him, called him a bad name, and banged on the door so hard that it almost came

off the hinges. 

The petitioner interrupted defense counsel at this point and said, “Tell her [the trial judge]

what you told me. No, tell her the truth. Tell her what you told me.” Defense counsel responded

to the trial court by saying, 

Exactly, this is what I get all the time. This is all the time. I said to him that if he got

on the stand and testified I should walk away, because I would not be doing justice

to the system nor to him.

. . .

The bottom line, I’m having a very difficult time giving him a hundred percent

because he won’t, really won’t let me. But just like he says right now, tell the truth. 

I’m telling you that . . . .

Trial Tr. at 61-62 (July 15, 2010). 

The trial court acknowledged some “discontentment” between the petitioner and defense

counsel and then reminded the petitioner of his right to remain silent. The petitioner interrupted the

trial court and said, “I wish to remain silent.” The trial court nevertheless went on to point out that 

the petitioner also had a right to testify and tell the jury his side of the story. After explaining these

options to the petitioner, the court asked the petitioner what he wanted to do. Id. at 62-64. The

discussion proceeded as follows: 

DEFENDANT BLANCH: I wish to remain silent.

But I asked him a question and he told me, “Shut up. I’m the lawyer.” I don’t get

to respond with him.

[DEFENSE COUNSEL]: That is not accurate.

DEFENDANT BLANCH: I got over eight people that can tell you. He came back

there. I asked him a question. He walk[ed] off, don’t say nothing. He just said,

“Shut up. I’m the lawyer.” That’s exactly what he told me.

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[DEFENSE COUNSEL]: I walk off because he yells at me. He shows me

absolutely no respect. I’m a dumb . . . idiot. That’s what he tells me. With all due

respect, Judge — 

DEFENDANT BLANCH: He told me that.

[DEFENSE COUNSEL]: No, you told me that, sir. With all due respect, Judge, I

don’t mind being the lawyer. I don’t mind being called names. But after I go back

there six or seven times and it’s the same disrespect, I don’t want to hear that. I’m

sorry. I’m not an egg shell . . . . I can handle it, believe me. I’m an alligator skin. 

But after a while it’s demeaning.

Id. at 64-65. 

The trial judge then confirmed with defense counsel that he intended to rest after the

prosecution presented three more witnesses, and the petitioner agreed with the trial court that it was

an emotionally difficult time for him. The judge concluded that the petitioner and defense counsel

were not so far apart as to require removal of defense counsel. The judge noted that the stress level

was high, that they were in the middle of trial, and that it was important for everyone to maintain

control. The court then stated that they would proceed and finish the trial that day. Id. at 65-67. 

The Michigan Court of Appeals determined on direct review that the petitioner failed to

show a breakdown in the attorney-client relationship. The court of appeals noted that, although

initially there was a disagreement on whether the petitioner should testify, there was no

irreconcilable dispute, there was no destruction of communication between the petitioner and

defense counsel, and there was nothing in the record demonstrating inadequacy, lack of diligence,

or disinterest on the part of defense counsel. The court of appeals disagreed with the petitioner’s

contention that the trial judge placed docket concerns above fairness, and the court of appeals stated

that the trial court conducted an adequate inquiry into the alleged breakdown. 

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The record supports the state courts’ findings and conclusions. There was an obvious

conflict about whether the petitioner should testify, but the petitioner did not ask for substitution of

counsel or complain about his attorney’s competence. In fact, the petitioner twice informed the trial

court during the court’s colloquy with him that he wished to remain silent. That is an indication that

the differences between the petitioner and counsel on matters of trial tactics were not so great that

there was an irreconcilable conflict, a complete breakdown in communication, or an inability to

prepare and present an adequate defense. 

 The state appellate court’s conclusion that the trial court made an adequate inquiry and did

not place docket concerns over fairness also is supported by the record. Although the trial judge did

much of the talking after defense counsel explained his frustration with the petitioner, the court

appears to have been trying to pacify the petitioner and to reason with him. The court gave the

petitioner an opportunity to speak, and the petitioner took advantage of several opportunities to

address the court. 

 There certainly was some friction between the petitioner and his (second) attorney, but the 

petitioner had no right to a meaningful relationship with his attorney. Morris v. Slappy, 461 U.S.

1, 13-14 (1983). Furthermore, the record indicates that the alleged breakdown in the relationship

was largely the petitioner’s fault. He apparently showed disrespect to his attorney on several

occasions, called his attorney foul names, and violently pounded on a door while the attorney was

attempting to communicate with him. “A disagreement between the defendant and defense counsel

over legal strategy does not constitute good cause requiring substitution of counsel, nor does a

defendant’s unilateral decision not to cooperate with court appointed counsel.” Caldwell v. Phelps,

945 F. Supp. 2d 520, 537 (D. Del. 2013) (citing United States v. Goldberg, 67 F.3d 1092, 1098-99

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(3d Cir. 1995), and United States v. Gibbs, 190 F.3d 188, 207 n.10 (3d Cir. 1999)); see also People

v. Meyers, 124 Mich. App. 148, 166-67, 335 N.W.2d 189, 197 (1983) (stating that “[a] defendant

may not purposely break down the attorney-client relationship by refusing to cooperate with his

assigned attorney and then argue that there is good cause for a substitution of counsel”).

The state trial court did not violate the petitioner’s limited right to counsel of choice by

failing to appoint substitute counsel. Nor was the state appellate court’s ruling — that the trial court

did not abuse its discretion — contrary to or an unreasonable application of Supreme Court

precedent. The Court therefore declines to grant the writ on the basis of the petitioner’s claim.

B.

The petitioner alleges next that his trial attorney was ineffective by not securing the presence

of two critical defense witnesses. The petitioner raised this claim in his motion for relief from

judgment, which the trial court denied on the merits and because the petitioner failed to raise his

claim on direct appeal. 

A violation of the Sixth Amendment right to effective assistance of counsel is established

when an attorney’s performance was deficient and the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is deficient if

“counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. The

petitioner must show “that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. “Judicial scrutiny of

counsel’s performance must be highly deferential.” Id. at 689. The Supreme Court has “declined

to articulate specific guidelines for appropriate attorney conduct and instead [has] emphasized that

the proper measure of attorney performance remains simply reasonableness under prevailing

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professional norms.” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688) (internal

quotation marks omitted).

 An attorney’s deficient performance is prejudicial if “counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. 

The petitioner must show “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694. Unless the petitioner demonstrates

both deficient performance and prejudice, “it cannot be said that the conviction resulted from a

breakdown in the adversary process that renders the result unreliable.” Id. at 687.

Success on ineffective-assistance-of-counsel claims is relatively rare, because the standard

for obtaining habeas corpus relief “is ‘difficult to meet.’” Woodall, 134 S. Ct. at 1702 (quoting

Metrish v. Lancaster, 569 U.S. 351, 358 (2013) (quoting Richter, 562 U.S. at 102)). The standard

is “all the more difficult” on habeas corpus review because “[t]he standards created by Strickland

and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” 

Richter, 562 U.S. at 105 (citations and quotation marks omitted). “[T]he question is not whether

counsel’ actions were reasonable,” but “whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.” Ibid. 

The underlying basis for the petitioner’s claim that defense counsel failed to secure the

presence of two critical defense witnesses is defense counsel’s comment at a pretrial hearing that

he had two witnesses. Pretrial Tr. at 4 (Apr. 21, 2010.) At trial, defense counsel rested without

presenting any witnesses. Trial Tr. at 97 (July 15, 2010). 

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“The failure to call favorable witnesses can amount to ineffective assistance where it results

in prejudice to the defense,” Pillette v. Berghuis, 408 F. App’x 873, 884 (6th Cir. 2010), but the

Court “must presume that decisions of what evidence to present and whether to call or question

witnesses are matters of trial strategy,” Cathron v. Jones, 77 F. App’x 835, 841 (6th Cir. 2003)

(citing Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002)). Here, the petitioner has not identified

any specific witnesses that defense counsel could have produced, and he has not explained what the

witnesses would have said if they had testified. “Without producing or otherwise detailing the

[potential] witnesses’ testimony, the petitioner’s claim essentially relies on ‘speculation about what

unidentified persons might have said,’ and such a showing fails to carry [the petitioner’s] burden to

show prejudice.” Veal v. Cooper, 936 F. Supp. 511, 514-15 (N.D. Ill. 1996) (internal citation

omitted); see also Dell v. Straub, 194 F. Supp. 2d 629, 650 (E.D. Mich. 2002) (concluding that

defense counsel’s failure to present witnesses did not amount to ineffective assistance of counsel

because the petitioner failed to identify the witnesses, indicate their availability, or specify the

content of their testimony). 

The petitioner has failed to show that his attorney’s performance was deficient and that he

was prejudiced by defense counsel’s failure to call witnesses. Therefore, habeas relief is not

warranted on the petitioner’s claim of ineffective assistance of trial counsel.

C.

The petitioner alleges that the prosecutor violated his right to due process by arguing facts

during his opening statement that were not offered in evidence during the trial. He also alleges that

defense counsel was constitutionally ineffective by failing to object to the prosecutor’s remarks. The

trial court rejected this claim because the petitioner failed to raise the claim on direct review and

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because, even if the prosecutor’s comments were erroneous, the petitioner had failed to show that

the prosecutor acted in bad faith. The trial court also stated that counsel was not required to raise

frivolous or meritless arguments.

“Claims of prosecutorial misconduct are reviewed deferentially” in a habeas case. Millender

v. Adams, 376 F.3d 520, 528 (6th Cir. 2004). When the issue is the prosecutor’s remarks, the

“clearly established Federal law” is the Supreme Court’s decision in Darden v. Wainwright, 477

U.S. 168 (1986). Parker v. Matthews, 567 U.S. 37, 45 (2012) (per curiam). In Darden, the Supreme

Court stated that

it “is not enough that the prosecutors’ remarks were undesirable or even universally

condemned.” Darden v. Wainwright, 699 F.2d [1031, 1036 (11th Cir. 1983)]. The

relevant question is whether the prosecutors’ comments “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” Donnelly v.

DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Moreover, the

appropriate standard of review for such a claim on writ of habeas corpus is “the

narrow one of due process, and not the broad exercise of supervisory power.” Id.,

at 642, 94 S.Ct., at 1871.

Darden, 477 U.S. at 181. 

Although prosecutors may not “bring to the attention of the jury any ‘purported facts that are

not in evidence and are prejudicial,’” they may “‘argue reasonable inferences from the evidence.’” 

Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000) (citations omitted). Further, “[i]n deciding

whether prosecutorial misconduct mandates that habeas relief be granted, the Court must apply the

harmless error standard.” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (citing Eberhardt

v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979)). On habeas review, an error is harmless unless it

had a “‘substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)).

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In his opening statement, the state prosecutor represented that Bloodworth had described the

armed man as being “a shorter man with braids wearing a dark blue overcoat with light blue

sleeves.” Trial Tr. at 27 (July 15, 2010). The prosecutor went on to say that, when Officer Sweeney 

went to the petitioner’s house, “sure enough they find . . . Mr. Blanch, the short stocky fellow with

braids.” Ibid. The petitioner contends that witnesses did not describe the suspect in this way

and, therefore, the prosecutor injected facts not in evidence. And it followed that defense counsel

was ineffective for failing to object. 

The opening statement, however, was “no more than an objective summary of evidence

which the prosecutor reasonably expected to produce.” Frazier v. Cupp, 394 U.S. 731, 736 (1969). 

Bloodworth, moreover, testified that the petitioner wore a dark blue jacket with light blue sleeves

Trial Tr. at 34 (July 15, 2010), and he described the petitioner to the police as being 5’8” and 175

pounds, id. at 49-50. Officer Sweeney testified that, according to his police report, the petitioner

had braided black hair and was 5’11” inches tall and 200 pounds. His report indicated that the other

suspect was 6’0” tall and 185 pounds with short black hair. Id. at 79-81. 

It is clear from the trial testimony that the petitioner was the shorter, heavier suspect and the

one with braided hair. Because the prosecutor’s opening statement was consistent with the evidence

subsequently elicited from witnesses, his comments did not deprive the petitioner of a fair trial or

due process of law.

Even if the prosecutor’s remarks were improper, the trial court instructed the jurors that

opening statements were not evidence. Id. at 18-19, 116. In light of this instruction, “there can be

no reversible error because the remarks did not prejudice [the petitioner.]” United States v. Wells,

623 F.3d 332, 345 (6th Cir. 2010). 

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Finally, because the petitioner’s claim about the prosecutor lacks merit, defense counsel was

not ineffective by failing to object to the prosecutor’s comments. “Omitting meritless arguments

is neither professionally unreasonable nor prejudicial.” Coley v. Bagley, 706 F.3d 741, 752 (6th Cir.

2013). 

D.

In his fourth and final claim, the petitioner contends that appellate counsel was

constitutionally ineffective because counsel failed to raise claims about defense trial counsel’s

performance and the prosecutor’s opening statement. To demonstrate that appellate counsel was

ineffective, a habeas petitioner must (1) show that his attorney acted unreasonably in failing to

discover and raise nonfrivolous issues on appeal and (2) demonstrate a reasonable probability that

he would have prevailed on appeal if his appellate attorney had raised the issue. Smith v. Robbins,

528 U.S. 259, 285 (2000).

“[T]here is no constitutional right to have every nonfrivolous issue raised on appeal.” 

Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998) (citing Jones v. Barnes, 463 U.S. 745, 750-54,

(1983)). Choosing which appellate issues to advance are tactical decisions “properly left to the

sound professional judgment of counsel.” Ibid. (citing United States v. Perry, 908 F.2d 56, 59 (6th

Cir. 1990)). In fact, “[t]his process of ‘winnowing out weaker arguments on appeal and focusing

on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of

effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Barnes, 463

U.S. at 751–52). 

Here, appellate counsel obviously winnowed out weaker arguments and focused on a single

claim that he thought was more likely to succeed. This was effective appellate strategy because the

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omitted claims lack merit for the reasons given above. “Appellate counsel cannot be found to be

ineffective for ‘failure to raise an issue that lacks merit.’” Shaneberger v. Jones, 615 F.3d 448, 452

(6th Cir. 2010) (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)).

Further, it is unlikely that the petitioner would have achieved success on direct appeal even

if his claims about trial counsel and the prosecutor had been raised. Thus, appellate counsel’s

performance did not prejudice the petitioner. The petitioner is not entitled to relief on his claim

about appellate counsel. 

III.

The state courts’ decisions in this case were not contrary to federal law, an unreasonable

application of federal law, or an unreasonable determination of the facts. The petitioner has not

established that he is presently in custody in violation of the Constitution or laws of the United

States. 

Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: January 16, 2018

PROOF 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 January 16, 2018.

s/Susan Pinkowski 

SUSAN PINKOWSKI

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