UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CHRISTOPHER SCOTT NICKERSON, 

 

 Petitioner, 

 Civil Case No. 14-14725 

v. Honorable Linda V. Parker 

LORI GIDLEY, 

 

 Respondent. 

________________________________/ 

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF 

HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF 

APPEALABILITY

 Petitioner Christopher Scott Nickerson (“Petitioner”) has filed a petition for 

writ of habeas corpus pursuant to 28 U.S.C. § 2254, through his attorney, David A. 

Dodge. Petitioner is challenging his conviction in the Circuit Court for Oakland 

County, Michigan, for assault with intent to commit murder,1

 felon in possession 

of a firearm,2

 felony firearm,3 and being a third felony habitual offender.4 For the 

reasons stated below, the Court is denying the petition for writ of habeas corpus.

 

1 Michigan Compiled Laws § 750.83. 

2 Michigan Compiled Laws § 750.224f. 

3 Michigan Compiled Laws § 750.227b 

4 Michigan Compiled Laws § 769.11. 

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I. Background 

Petitioner was convicted of the above-listed offenses following a jury trial, 

in which he was tried jointly, but by separate juries, with his co-defendant, Marc 

McArthur. His convictions were affirmed on direct appeal. People v. Nickerson, 

No. 308060, 2014 WL 265509 (Mich. Ct. App. Jan. 23, 2014) (unpublished). 

The relevant facts relied upon by the Michigan Court of Appeals when 

affirming Petitioner’s convictions are presumed correct on habeas review pursuant 

to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 

2009). Those facts are: 

Defendants’ convictions arise from a failed armed robbery plan 

at a motel in Madison Heights, Michigan, on October 26, 2010. The 

intended victim, Saud Shinko, met Constance Hazelett at the motel, 

with the intention that they would consume alcohol and drugs, and 

possibly engage in sex. However, Hazelett had made plans with 

defendant Nickerson for Nickerson to come to the motel to rob Shinko 

of his drugs and money. Defendant McArthur, who belonged to the 

same motorcycle club as Nickerson, also went to the motel that night 

with Noah Smith, the getaway driver. As the evening progressed, 

Shinko grew suspicious after noticing men sitting in a car about five 

or six rooms away and Hazelett repeatedly texting and talking on her 

cellular telephone. Shinko called the front desk and was connected to 

the police. Meanwhile, the two defendants approached the motel 

room and knocked on the door. When Hazelett went over to open it, 

Shinko stopped her. Defendants eventually stopped knocking and fled 

in a Chrysler 300, apparently because the police had arrived. 

After a short police pursuit, defendants’ vehicle crashed into a 

cement wall that separated the motel from a wooded area. According 

to witnesses at trial, Smith remained in the car, McArthur exited the 

back seat and fled into the woods, and Nickerson exited the front 

passenger seat and discharged a firearm five or six times at a pursuing 

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police sergeant, Sergeant Pawlowski, before also fleeing into the 

wooded area. Nickerson was arrested at a hotel adjacent to the motel 

and the wooded area, and a police dog was used to locate McArthur, 

who was hiding in heavy brush in the wooded area. The police 

recovered a .38 caliber revolver approximately 10 feet from where the 

car crashed. In an elevator of the hotel where Nickerson was arrested, 

the police recovered a .380 caliber Caltech handgun, which was 

missing one round, a black hooded jacket, a black and white bandana, 

and a folding knife. Also in the woods, about six feet from where 

McArthur was found, the police recovered a baggie of cocaine, a 

black and white bandana, and a holster. A .22 caliber pistol was found 

about 14 feet from where McArthur was found. Later, the police 

located a .357 magnum handgun and a knife in the wooded area; these 

items were about six to eight feet from where the other items had been 

found. The police determined that the .357 Magnum was the weapon 

that was fired at the officer, and the prosecutor’s theory at trial was 

that Nickerson shot at the officers and later handed off the gun to 

McArthur as the men were running from the police. 

* * * 

At trial, two witnesses—Hazelett and Pawlowski—identified 

defendant Nickerson as the person who fired several shots toward 

Pawlowski’s patrol car. Pawlowski testified that he observed 

defendant Nickerson, who had a distinctive “Mohawk” style haircut, 

in the front passenger seat of the Chrysler. According to Pawlowski, 

the lighting conditions in the area were “really good.” After a very 

brief pursuit, the Chrysler crashed into a wall and the sergeant stopped 

his patrol car about six to ten feet from the Chrysler’s back bumper. 

Pawlowski observed defendant Nickerson exit from the front 

passenger seat of the Chrysler, raise two handguns, hold them straight 

out in front of him, and point them toward his patrol car. Pawlowski 

took cover and immediately heard five or six shots in rapid 

succession. Pawlowski was positive that defendant Nickerson was the 

person who shot at him, and testified that defendant Nickerson “was 

the only person pointing guns at him.” 

Hazelett also testified that she saw defendant Nickerson 

“shooting his gun” at a police car. She observed defendant Nickerson 

with his hands straight out, pointing a gun at a police car, and heard 

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five or six shots. From her angle, she observed defendant Nickerson’s 

“whole left side,” so she saw the “whole left side of his face,” his 

haircut, and him shooting a gun. Although defendant Nickerson notes 

the inconsistent witness testimony concerning the number of guns he 

held, a jury could reasonably infer that Hazelett saw only one gun 

because she saw only defendant Nickerson’s left side. Further, 

Hazelett explained that she had spent time with defendant Nickerson 

on four or five occasions, and had a sexual relationship with him “a 

couple of times.” From this evidence, a jury could reasonably infer 

that Hazelett was familiar with defendant Nickerson, thereby 

enhancing the reliability of her identification testimony. 

Nickerson, 2014 WL 265509, at *1, 2-3 (brackets removed). 

 On December 15, 2014, Petitioner filed his petitioner for the writ of habeas 

corpus. Petitioner asserts the following grounds in support of his request for 

habeas relief: 

I. The Petitioner was denied his constitutional right to be represented 

by an effective lawyer, pursuant to U.S. Constitution, Am. VI, when 

his prior attorney failed: 1) to meaningfully test the People’s evidence 

about gunshot residue testing; and 2) to properly investigate and 

persist in the investigation/disclosure of potentially critical 

exculpatory evidence, instead, abandoning the investigation at an 

unreasonable juncture. 

II. The Petitioner was denied his federal constitutional due process 

rights to confront witnesses and establish a witness’ inducement and 

motive to testify because of the trial court’s instructions to the jury 

over the Petitioner’s objection concerning Constance Hazelett’s pleabargained consideration from the prosecution regarding her testimony. 

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II. Standard of Review

 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”), imposes the following standard of review for 

habeas cases: 

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. 

 

A decision of a state court is “contrary to” clearly established federal law if the 

state court arrived at a conclusion opposite to that reached by the Supreme Court 

on a question of law or decided a case differently than the Supreme Court has on a 

set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 

(2000). An “unreasonable application” occurs when “a state court decision 

unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s 

case.” Id. at 409. A federal habeas court may not “issue the writ simply because 

that court concludes in its independent judgment that the relevant state-court 

decision applied clearly established federal law erroneously or incorrectly.” Id. at 

410-11.

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The Supreme Court has explained that “a federal court’s collateral review of 

a state-court decision must be consistent with the respect due state courts in our 

federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “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 v. Murphy, 521 U.S. 320, 333, n. 7 

(1997); 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. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). 

Furthermore, pursuant to § 2254(d), “a habeas court must determine what 

arguments or theories supported or . . . could have supported, the state court’s 

decision; and then it must ask whether it is possible fairminded jurists could 

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

prior decision” of the Supreme Court. Id.

 The Supreme Court has advised that “[i]f this standard is difficult to meet, 

that is because it was meant to be.” Harrington, 562 U.S. at 102. Although 

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§ 2254(d), as amended by AEDPA, does not completely bar federal courts from 

relitigating claims that have previously been rejected in the state courts, it 

preserves the federal court’s authority to grant habeas relief only “in cases where 

there is no possibility fairminded jurists could disagree that the state court’s 

decision conflicts with” Supreme Court precedent. Id. “Section 2254(d) reflects 

the view that habeas corpus is a ‘guard against extreme malfunctions in the state 

criminal justice systems,’ not a substitute for ordinary error correction through 

appeal.” Id. at 102-03 (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) 

(Stevens, J., concurring in judgment)). Thus, a “readiness to attribute error [to a 

state court] is inconsistent with the presumption that state courts know and follow 

the law.” Woodford, 537 U.S. at 24. In order to obtain habeas relief in federal 

court, a state prisoner therefore 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.” Harrington, 562 U.S. at 103. 

III. Discussion 

A. Ineffective Assistance of Counsel Claim 

Petitioner claims that his trial counsel was ineffective for failing to request 

gunshot residue testing on the clothing he and his co-defendant, McArthur, were 

wearing on the night of the shooting. Petitioner claims such testing could have 

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shown the absence of gunshot residue on his clothing and the presence of gunshot 

residue on McArthur’s clothing. As such, Petitioner claims such testing would 

have demonstrated that he was not the individual who shot at Sergeant Pawlowski. 

 The Michigan Court of Appeals rejected Petitioner’s claim, reasoning: 

Defendant Nickerson’s and codefendant McArthur’s clothing 

were not tested for gunshot residue, and the clothing apparently was in 

the custody of the police because both defendants were arrested 

contemporaneously with their charged conduct. Gunshot residue 

testing was performed on defendant Nickerson’s and codefendant 

McArthur’s hands and faces. No gunshot residue particles were found 

in the samples taken from defendant Nickerson. A single particle of 

gunshot residue was found in the sample taken from codefendant 

McArthur’s left hand. Defendant Nickerson now argues that had 

defense counsel ensured that the clothing was tested, it would have 

proven that defendant Nickerson was not the shooter, who therefore 

“must have been” codefendant McArthur. 

Decisions about defense strategy, including what evidence to 

present, and how to argue the case, are matters of trial 

strategy . . . Defendant Nickerson has not overcome the strong 

presumption that defense counsel chose not to pursue gunshot residue 

testing on the clothing as a matter of trial strategy. The defense was 

initially armed with results from gunshot residue testing that revealed 

that no residue was detected on defendant Nickerson’s hands or face, 

and that a single particle was detected on codefendant McArthur’s left 

hand. Those test results arguably pointed to codefendant McArthur as 

the shooter and also supported defendant Nickerson’s theory that he 

did not shoot a gun because no residue was detected on his hands. 

Defense counsel was also aware, however, that two eyewitnesses, one 

a police sergeant, had identified defendant Nickerson as the shooter. 

Defense counsel could have made the objectively reasonable decision 

to proceed with the favorable results in hand, and not risk producing 

inculpatory evidence by testing Nickerson’s clothing as well. The 

reasonableness of counsel’s decision is supported by the forensic 

expert’s testimony that the absence of particles does not mean that the 

person did not fire a weapon, and thus, that testing is not conclusive. 

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Had defense counsel pursued testing of the clothing and also obtained 

favorable results, that evidence would have been cumulative to the 

prior test results. An unfavorable result, however, would have been 

more damaging to the defense than obtaining cumulative evidence 

would have been helpful. Under these circumstances, defendant has 

not overcome the presumption that defense counsel’s decision 

constituted reasonable trial strategy, and “this Court will not secondguess defense counsel’s judgment on matters of trial strategy.” 

Moreover, defendant Nickerson cannot demonstrate a 

reasonable probability that, but for counsel’s failure to pursue the 

testing, the result of the proceedings would have been different. 

Again, the forensic expert explained that a negative test result does 

not mean that the person did not fire a gun. Moreover, two 

eyewitnesses identified defendant Nickerson as the gunman, and 

neither witness saw codefendant McArthur with a gun or shooting a 

gun. Considering the testimony of the two eyewitnesses and the 

forensic expert, defendant Nickerson has not established a reasonable 

probability that testing of the clothing would have affected the 

outcome of the trial. Consequently, the record does not support this 

ineffective assistance of counsel claim. 

Nickerson, 2014 WL 265509, at *6-7 (internal citations omitted). The Michigan 

Court of Appeals’ decision is neither contrary to, nor an unreasonable application 

of, clearly established federal law. The state court also did not base its decision on 

an unreasonable determination of the facts in light of the evidence presented at 

Petitioner’s trial. 

 A habeas petitioner asserting the denial of the effective assistance of counsel 

must satisfy a two-prong test. First, the petitioner must demonstrate that, 

considering all of the circumstances, counsel’s performance was so deficient that 

“counsel was not functioning as the ‘counsel’ guaranteed by the Sixth 

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Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To make this 

showing, the petitioner must overcome “a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional assistance[.]” Id. at 

689. In other words, the petitioner “must overcome the presumption that, under 

the circumstances, the challenged action might be considered sound trial strategy.” 

Id. (internal quotation marks and citation omitted). Second, the petitioner must 

show that counsel’s deficient performance prejudiced his defense. Id. at 687 To 

demonstrate prejudice, the 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. “Strickland places the burden 

on the defendant, not the state, to show a ‘reasonable probability’ that the result [of 

the proceeding] would have been different[,]” but for counsel’s allegedly deficient 

performance. Wong v. Belmontes, 558 U.S. 15, 27 (2009). 

 Notably, on habeas review, “[t]he question ‘is not whether a federal court 

believes the state court’s determination’ under the Strickland standard ‘was 

incorrect but whether that determination was unreasonable-- a substantially higher 

threshold.’ ” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. 

Landrigan, 550 U.S. 465, 473 (2007)). “The pivotal question is whether the state 

court’s application of the Strickland standard was unreasonable. This is different 

from asking whether defense counsel’s performance fell below Strickland’s

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standard.” Harrington, 562 U.S. at 101. Indeed, “because the Strickland standard 

is a general standard, a state court has even more latitude to reasonably determine 

that a defendant has not satisfied that standard.” Knowles, 556 U.S. at 123 (citing

Yarborough, 541 U.S. at 664). Under the standard of review set forth in 

§ 2254(d)(1), “doubly deferential judicial review” applies to a Strickland claim 

brought by a habeas petitioner. Id. “Surmounting Strickland's high bar is never an 

easy task.” Harrington, 562 U.S. at 105 (quoting Padilla v. Kentucky, 559 U.S. 

356, 371 (2010)). 

 Finally, a reviewing court does not simply consider the explanation for the 

conduct given by the allegedly deficient attorney. Cullen v. Pinholster, 131 S. Ct. 

1388, 1407 (2011). A habeas court must also “affirmatively entertain the range of 

possible reasons [the petitioner’s] counsel may have had for proceeding as [he or 

she] did.” Id. (internal quotation marks and citation omitted). 

 As part of his ineffective assistance of counsel claim, Petitioner argues that 

he was constructively denied the assistance of counsel due to his attorney’s alleged 

omissions in the trial court and that prejudice to his case therefore should be 

presumed. In other words, Petitioner contends he should not have to show that he 

was actually prejudiced by counsel’s inactions to obtain habeas relief. 

 In “very limited circumstances” an irrebutable presumption of prejudice 

arises in an ineffective assistance of counsel claim. United States v. Cronic, 466 

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U.S. 648, 646 (1984). Where defense counsel entirely fails to subject the 

prosecution’s case to “meaningful adversarial testing,” there has been a 

constructive denial of counsel and a defendant need not make a showing of 

prejudice to establish ineffective assistance of counsel. Moss v. Hofbauer, 286 

F.3d 851, 860 (6th Cir. 2002) (citing Cronic, 466 U.S. at 659). Such a 

presumption arises where a defendant “is denied counsel at a critical stage of his 

trial.” Cronic, 466 U.S. at 659. Counsel must be “either totally absent, or 

prevented from assisting the accused during a critical stage of the proceeding.” Id.

Cronic’s presumption does not apply to Petitioner’s claim for two reasons. 

 First, Petitioner never raised a claim in the state courts that he was 

constructively denied the assistance of counsel. As a general rule, a state prisoner 

seeking federal habeas relief must first exhaust available state court remedies 

before raising a claim in federal court. 28 U.S.C. § 2254(b), (c); Picard v. Connor, 

404 U. S. 270, 275-78 (1971); Turner v. Bagley, 401 F.3d 718, 724 (6th Cir. 2005). 

Exhaustion for purposes of federal habeas review requires that a claim be “fairly 

presented” to the state courts, meaning that it is asserted “under the same theory in 

which it is later presented in federal court.” Williams v. Bagley, 380 F.3d 932, 969 

(6th Cir. 2004). 

 In the state courts, Petitioner did not argue that the Cronic presumed 

prejudice standard applied to his case. (See ECF No. 6-15 at Pg ID 797-801.) 

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Instead, he employed the Strickland standard when arguing trial counsel’s 

ineffectiveness. “While both Cronic and Strickland concern Sixth Amendment 

violations, they are distinct legal claims and the difference between the two ‘is not 

of degree but of kind.’ ” Fusi v. O'Brien, 621 F.3d 1, 6 (1st Cir. 2010). As the First 

Circuit explained: 

Strickland requires a case-by-case analysis of whether counsel’s 

deficiencies affected the outcome of a trial, while Cronic permits a 

presumption of prejudice if an actual or constructive denial of counsel 

occurs during a critical stage of the trial. These claims, while based 

on similar factual underpinnings, are separate and distinct. A 

defendant’s reliance on one theory in state court does not exhaust the 

other. 

Id. As such, Petitioner’s constructive denial of counsel claim was not exhausted 

with the state courts. Id. 

 Second, Cronic is not applicable to Petitioner’s claim. 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 Cone, 535 U.S. 685 697 

(2002)). The alleged errors of Petitioner’s trial counsel did not rise to the level of 

the constructive denial of counsel, because counsel actively represented Petitioner 

at his trial. See Moss, 286 F.3d at 860-62. Trial counsel participated in voir dire, 

cross-examined the witnesses, asserted objections, presented a defense, and made 

opening and closing arguments. The presumption of prejudice therefore does not 

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apply. As a result, Petitioner must show that he was actually prejudiced by 

counsel’s alleged omissions in order to obtain habeas relief. Id. Petitioner fails to 

make this showing.

 First, Petitioner failed to offer the state courts and has not offered this Court 

any evidence to suggest that gunpowder testing of his or McArthur’s clothing 

would provide the exculpatory results he claims. Conclusory allegations by a 

habeas petitioner, without any evidentiary support, do not provide a basis for 

habeas relief. See, e.g., Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) 

(bald assertions and conclusory allegations do not provide sufficient ground to 

warrant requiring an evidentiary hearing in a habeas proceeding); Workman v. Bell, 

160 F.3d 276, 287 (6th Cir. 1998) (conclusory allegations of ineffective assistance 

of appellate counsel do not warrant habeas relief). A habeas petitioner must make 

more than merely speculative assertions to establish a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceedings would have 

been different. See Bowen v. Foltz, 763 F.2d 191, 194 (6th Cir. 1985). 

 Second, Petitioner cannot overcome the presumption that counsel’s decision 

to forego testing of the clothing for gunshot residue was a valid strategic choice. 

Petitioner’s counsel already had results from gunshot residue testing which showed 

no residue on Petitioner’s hands or face, but the detection of a single particle on 

McArthur’s left hand. Counsel was able to use these test results to argue that 

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McArthur was the real shooter and that Petitioner never discharged a firearm 

because no residue was detected on his hands or face. (11/1/11 Trial Tr. at 15; 

11/7/11 Trial Tr. at 58-59, 66.) Two eyewitnesses identified Petitioner as the 

shooter. (11/3/11 Trial Tr. at 270-72; 11/4/11 Trial Tr. at 153-55.) Defense 

counsel’s decision to rely on the gunshot residue tests that he already had, instead 

of requesting additional gunshot residue testing which may have uncovered 

evidence further incriminating Petitioner as the shooter, was a reasonable strategy 

that defeats Petitioner’s claim. See Jones v. Butler, 778 F.3d 575, 583 (7th Cir. 

2015) (holding that the state court did not unreasonably apply Strickland in 

rejecting habeas petitioner’s claim that trial counsel was ineffective in forgoing 

gunshot residue, reasoning that counsel made tactical decision because such 

additional testing could have proven detrimental to the petitioner while offering 

little chance to improve his case and the petitioner was able to argue at trial that the 

absence of such residue on his hands played to his favor and that the prosecution, 

by neglecting to test a shirt, failed to satisfy its burden of proof). 

 Finally, Petitioner is unable to establish that he was prejudiced by counsel’s 

failure to pursue the gunshot residue testing because even if the tests had come 

back negative with respect to Petitioner’s clothing, a forensic expert testified at 

trial that such tests are inconclusive as the absence of gunshot particles does not 

necessarily mean that the person did not discharge a weapon. (11/1/11 Trial Tr. at 

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70.) As indicated, two eyewitnesses positively identified Petitioner as the shooter. 

In light of the evidence in this case, counsel’s failure to request that gunshot 

residue testing be performed on Petitioner’s and McArthur’s clothing did not 

prejudice Petitioner. Therefore, Petitioner is not entitled to habeas relief on his 

first claim. 

B. Jury Instruction Claim 

Petitioner next claims that the trial court erred by giving the jury a modified 

version of C.J.I. 2d 5.13, which addresses the issue of plea agreements given to 

cooperating witnesses in exchange for their testimony. The modified version 

included the sentencing guidelines range that Hazelett would have faced if she had 

been convicted as charged of conspiracy to commit armed robbery. 

 The Michigan Court of Appeals rejected Petitioner’s claim, reasoning: 

The trial court instructed the jury on Hazelett’s agreement in 

exchange for her testimony as follows: 

You have heard testimony that a witness, Constance Hazelett, 

made an agreement with the prosecutor in exchange for her 

testimony in this trial. 

You have also heard evidence that she faced a possible penalty of life 

or any term of years as a result of those charges. 

Sentencing guidelines in her case were twenty-seven to forty-five 

months. You are to consider this evidence only as it relates to her 

credibility and as it may tend to show her bias or self-interest. 

Defendant Nickerson correctly notes that the emphasized 

language is not part of CJI2d 5.13, but takes an incorrect view of the 

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required usage of the standard jury instructions. Instructions given by 

the trial court are not erroneous simply because they do not mirror the 

standard criminal jury instructions. The trial court’s instructions, as a 

whole, fairly presented the issue of weighing Hazelett’s credibility 

and bias or self-interest because of the sentencing advantages of her 

plea agreement offered in exchange for her testimony. While the 

modified instruction further clarified Hazelett’s particular 

circumstances, it did not lessen the objective of the instruction, and 

still included the statement that Hazelett faced potential life 

imprisonment. Further, the plea agreement was addressed extensively 

during trial, and defense counsel argued that the agreement between 

Hazelett and the prosecution influenced her testimony. 

Additionally, the trial court’s general instructions on witness 

credibility also guided the jury in assessing the credibility of 

Hazelett’s testimony. For example, the jurors were instructed that it 

was their job to assess witness credibility, and in doing so, they should 

consider whether the witness has any bias, prejudice, or personal 

interest in the case, if there have been any promises, threats, or other 

influences that may have affected how the witness testified, and 

whether the witness had any special reason to be untruthful. In sum, 

the trial court’s instructions fairly presented the issues to be tried and 

sufficiently protected defendant Nickerson’s rights. Accordingly, 

defendant Nickerson was not denied his due process right to a fair 

trial. 

Nickerson, 2014 WL 265509, at *4 (internal citations omitted) (emphasis in 

original). This decision also is neither contrary to, nor an unreasonable application 

of, clearly established federal law. The Michigan Court of Appeals also did not 

base its decision on an unreasonable determination of the facts in light of the 

evidence presented at Petitioner’s trial. 

 “ ‘The burden of demonstrating that an erroneous instruction was so 

prejudicial that it will support a collateral attack on the constitutional validity of a 

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state court’s judgment is even greater than the showing required to establish plain 

error on direct appeal.’ ” Hodges v. Parker, 493 F. App’x 704, 708 (6th Cir. 2012) 

(quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). The federal habeas court 

must ask “whether the ailing instruction by itself so infected the entire trial that the 

resulting conviction violates due process, not merely whether the instruction is 

undesirable, erroneous, or even universally condemned.’ ” Id. The Supreme Court 

has warned that the challenged instruction must not be judged in isolation, but 

instead in the context of the entire jury charge. Jones v. United States, 527 U.S. 

373, 391 (1999) (citing cases). “Even if there is some ‘ambiguity, inconsistency or 

deficiency’ in the jury instruction, such an error does not necessarily constitute a 

due process violation.” Waddington v. Sarausad, 555 U.S. 179, 190 (2009) 

(quoting Middleton v. McNeil, 541 U.S. 433, 436 (2004) (additional citations 

omitted)). “Federal habeas courts . . . do not grant relief, as might a state appellate 

court, simply because the instruction may have been deficient in comparison to 

[the state court’s] model. Estelle v. McGuire, 502 U.S. 62, 72 (1991). A habeas 

petitioner is entitled to relief only where an erroneous jury instruction “had 

substantial and injurious effect or influence [on the jury’s verdict].” See Hedgpeth 

v. Pulido, 555 U.S. 57, 61-62 (2008) (citing California v. Ray, 519 U.S. 2, 5 

(1996)). 

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 The jury instruction given at Petitioner’s trial adequately instructed the 

jurors on the issue of Hazelett’s credibility as a witness and alerted the jury to the 

potential reasons for Hazelett to be biased or for her to have a motive to offer false 

testimony against Petitioner. Although the addition of the sentencing guidelines 

range may have reduced Hazelett’s motivation to testify falsely in the juror’s 

minds, the judge also informed the jury that Hazelett had faced a potential life 

sentence if she was convicted of the conspiracy to commit armed robbery charge. 

The jurors were advised that they could consider the agreement Hazelett made in 

exchange for her testimony to assess her credibility. The general credibility 

instruction also informed the jurors of the factors they could use to determine 

Hazelett’s credibility, including any motives she might have to offer fabricated 

testimony. (See, 11/7/11 Trial Tr. at 92-94.) The Court concludes that the 

instructions, as given, did not deprive Petitioner of a fair trial. 

IV. Conclusion 

 For the foregoing reasons, the Court concludes that Petitioner is not entitled 

to the writ of habeas corpus and is denying his petition. The Court also is denying 

Petitioner a certificate of appealability. In order to obtain a certificate of 

appealability, a prisoner must make a substantial showing of the denial of a 

constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the 

applicant is required to show that reasonable jurists could debate whether, or agree 

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that, the petition should have been resolved in a different manner, or that the issues 

presented were adequate to deserve encouragement to proceed further. Slack v. 

McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a habeas 

petitioner’s constitutional claims on the merits, the petitioner must demonstrate 

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

constitutional claims to be debatable or wrong. Id. at 484. “The district court must 

issue or deny a certificate of appealability when it enters a final order adverse to 

the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254. 

 Petitioner fails to make a substantial showing of the denial of a federal 

constitutional right. As discussed, Petitioner must show prejudice resulting from 

his trial counsel’s alleged deficient performance as he failed to exhaust his Cronic 

claim in the state courts and Cronic is inapplicable in any event. He cannot show 

that the failure to conduct gunpowder testing of his and McArthur’s clothing 

prejudiced his defense. Moreover, he fails to show that counsel’s decision to 

forego such testing was not a valid strategic choice. Petitioner also fails to show 

that he was denied a fair trial as a result of the modified jury instruction given in 

regards to Hazelett’s cooperating testimony.

Accordingly, 

IT IS ORDERED that the Petition for a Writ of Habeas Corpus is DENIED 

WITH PREJUDICE. 

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IT IS FURTHER ORDERED that a Certificate of Appealability is 

DENIED. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: December 2, 2015 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, December 2, 2015, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

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