UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Ed Foster was convicted of first-degree felony murder for the death of Debra 

Boothby, whose body was found in 1998 outside of the Blue Star Lounge in Covert, 

Michigan. A jury found that Foster and a few others beat Boothby in the Blue Star 

parking lot and, eventually, that same group ran her over with a car twice. Foster 

was sentenced to life without the possibility of parole. 

After appealing his conviction—and returning to state court a second time to 

move for relief from judgment—Foster filed an amended petition for a writ of 

habeas corpus in this Court. For the reasons that follow, the Court denies the writ. 

1 The proper respondent in a habeas case is the warden of the facility where 

the petitioner is incarcerated. See Rule 2(a), Rules Governing § 2254 Cases; Mahan 

v. Douglas, — F. Supp. 3d —, 2022 WL 17352566, at *2 (E.D. Mich. Dec. 1, 2022). 

Thus, the Court substitutes Chris King as the respondent because he is the current 

warden of the prison where Foster is incarcerated. 

ED FOSTER, 

 Petitioner, 

 

v. 

 

CHRIS KING1, 

 Respondent. 

Case No. 15-12265 

Honorable Laurie J. Michelson 

OPINION AND ORDER DENYING MOTION TO HOLD PETITION IN 

ABEYANCE [24], MOTION FOR GUIDANCE [25], AND 

AMENDED PETITION FOR WRIT OF HABEAS CORPUS [21] 

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 Background 

 Facts 

The Court primarily relies on the facts as recited by the Michigan Court of 

Appeals on Foster’s direct appeal of his conviction with a few additional details from 

the state trial-court record. See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009) 

(citing 28 U.S.C. § 2254(e)(1)); Thompson v. Keohane, 516 U.S. 99, 102 (1995) (“The 

statute governing federal habeas corpus proceedings, 28 U.S.C. § 2254, directs that, 

ordinarily, state-court fact findings ‘shall be presumed to be correct.’”). 

“On April 26, 1998, Deborah Boothby and a friend went to the Blue Star 

Lounge, a bar located on the Blue Star Highway near South Haven, Michigan. By 

most accounts, Boothby became intoxicated and disruptive, engaging in an 

argument with an ex-boyfriend,” Ivory Shaver, “and his girlfriend[,]” Shevolier Gill. 

See People v. Foster, No. 301361, 2013 WL 4033639, at *1 (Mich. Ct. App. Aug. 8, 

2013). 

The club shut down early that night and all patrons were ordered to leave the 

bar. Id. “As the patrons left the bar, several people observed a fight in the parking 

lot involving Boothby and several other individuals.” Id. Those individuals included 

Ivory Shaver, Gill, Scottie Shaver (Ivory’s nephew), and—at least according to some 

accounts—Ed Foster. (ECF No. 9-16, PageID.3081, 3085 (describing a fight that was 

“like [a] cat getting thrown in there with some pit bulls” involving Scottie, Ivory, 

Gill, Boothby, and other unidentified persons); ECF No. 9-15, PageID.2865, 2887 

(witness testifying that she did not remember seeing Foster at the club or in the 

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parking lot but Ivory, Scottie, and Gill were hitting Boothby in the parking lot); 

ECF No. 9-18, PageID.3483–3484 (describing Ivory, Scottie, and Foster hitting 

Boothby in the parking lot); ECF No. 9-17, PageID.3226 (Adrienne Burnette stating 

that there was a fight in the parking lot between Boothby and Scottie, Gill, Foster, 

Ivory, and others).) Witnesses also remember Boothby yelling racial slurs in the 

parking lot. (ECF No. 9-15, PageID.2880; ECF No. 9-17, PageID.3227; ECF No. 9-

18, PageID.3981.) Boothby was apparently the only white woman in the club. (See, 

e.g., ECF No. 9-22, PageID.4419.) 

There was conflicting testimony about what happened next. Some witnesses 

stated that Foster was either never at the Blue Star lounge, or if he was, he left by 

himself in his truck without getting involved in the fight. (See ECF No. 9-15, 

PageID.2865, 2887; ECF No. 9-18, PageID.3583, 3587, 3589, 3599.) Others say 

Foster—after helping to batter Boothby—assisted Ivory and Scottie in picking her 

up and putting her in Gill’s car. (See, e.g., ECF No. 9-17, PageID.3234.) The vehicles 

dispersed from the parking lot at this point. 

That same night, “some time after 2:30 a.m.,” police arrived at the Blue Star 

Lounge “in response to a 911 call reporting a woman had been hit by a car. 

Responders found Boothby lying on the Blue Star Highway a short distance from 

the lounge, bleeding and severely injured. She died from multiple injuries after 

being transported to the hospital.” Foster, 2013 WL 4033639, at *1. 

For several years, the case remained unsolved. Foster, 2013 WL 4033639, at 

*1. Eventually, the police “received information and tips that” Foster, Ivory, Scottie, 

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and Gill “were involved in the fight that was described as a brutal beating of 

Boothby.” Id. At Foster’s trial, a few notable witnesses testified. 

Adrienne Burnette—who was dating Scottie—was perhaps most critical. 

Burnette was at the Blue Star Lounge on the night in question and saw Boothby go 

“straight up to where Ivory and [Gill] were standing” and noticed the conversation 

they were having “was not a happy one.” (ECF No. 9-17, PageID.3222.) When the 

club closed early, Burnette left to go to her car in the parking lot and saw a fight 

“between Deborah Boothby and the others which was you know, Scottie and [Gill,] 

Ivory and Ed [Foster], amongst others, and they was hitting and pushing and 

kicking.” (Id. at PageID.3226.) She stated that “[i]t appeared that they jumped her, 

it was horrible.” (Id. at PageID.3232.) Eventually, the bouncer told everyone to 

leave the parking lot, and Burnette saw Scottie, Ivory, and Foster take Boothby to 

Gill’s car. (Id. at PageID.3232–3234.) Ivory, Gill, and Foster got in the same vehicle 

they placed Boothby in. (Id. at PageID.3236.) 

According to Burnette, she got in her car and was waiting to leave the 

parking lot when Scottie got in her car. (Id. at PageID.3239.) Scottie told Burnette 

to follow Gill’s car or “the same thing” that happened to Boothby “would happen” to 

her. (Id. at PageID.3240–3241.) They drove to an isolated area where Gill, Ivory, 

and Foster took Boothby out from Gill’s car and put her on the ground outside of the 

car. (Id. at PageID.3245.) Gill choked Boothby and the men hit her. (Id. at 

PageID.3248–3249.) At this point, Boothby was no longer moving, and Gill asked, 

“well, what are we going to do, what are we going to do with her?” (ECF No. 9-17, 

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PageID.3250.) Ivory “thought of the idea of putting her back in the car and dumping 

her on the side of the road by the bar and making it look like somebody ran over 

her.” (Id.) 

Burnette said that the group followed along with Ivory’s plan—she and 

Scottie followed Gill’s car back to the Blue Star Lounge. (Id. at PageID.3254.) Foster 

“and Ivory got out, pulled [Boothby] on the side of the street and got back into 

[Gill’s] car and back up over her and rolled over her again.” (Id. at PageID.3254–

3255.) Scottie instructed Burnette to do the same, and she “reluctantly did what 

[she] was told and [she] ran over her.” (ECF No. 9-17, PageID.3263.) Burnette pled 

to murder in the second degree, a lesser charge than what she would have received 

had she not testified against the others. (ECF No. 9-17, PageID.3212–3213.) 

Keith Nickerson also testified for the prosecution. He shared a cell with 

Foster at the Van Buren County Jail while Nickerson awaited sentencing in federal 

court for a bank-robbery conviction. (ECF No. 9-19, PageID.3966–3967 (Nickerson’s 

testimony at Foster’s trial).) Nickerson testified that Foster told him that he had 

kicked Boothby in the head in the parking lot outside of the Blue Star Lounge and 

was in one of the vehicles that ran over Boothby. (ECF No. 9-19, PageID.3978–

3979.) With respect to any self-interest he may have had in testifying, the Court of 

Appeals found, “Nickerson testified that in April 2010, he was sentenced on the 

federal bank robbery charge to ten years and eight months and that he is currently 

serving that sentence. Nickerson testified that the prosecutor in the instant case did 

not indicate that he would do anything for him with regard to the cases he had 

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pending and that the prosecutor has not done anything on his behalf. When asked 

again by the prosecutor, “Have I offered to do anything on your behalf in regard to 

your testifying?” Nickerson responded, ‘No.’” Foster, 2013 WL 4033639, at *10. But 

“it is clear that Nickerson received a benefit from the 5K motion [for downward 

departure from the sentencing guidelines], which was based upon his cooperation in 

the instant matter. In the motion, the U.S. Attorney specifically stated that 

Nickerson’s testimony concerning the instant matter ‘proved to be instrumental in 

murder charges subsequently brought against five individuals by the Michigan 

Attorney General’ and that ‘[u]ndersigned counsel has spoken to Assistant Attorney 

General Dennis Pheney about the defendant’s assistance and was advised that the 

defendant testified at a preliminary examination and was an important witness in 

the case.’” Id. at *11. That motion from the U.S. Attorney was granted, and 

Nickerson “received a three level downward departure in his federal bank robbery 

sentencing.” Id. at *12. 

Nickerson was not the only jailhouse informant who testified. Michael Smith 

was a paralegal and “running the jail law library” at the Marion County Jail in 

Indianapolis, where he was housed on the same block as Foster. (ECF No. 9-19, 

PageID.3914, 3915, 3918.) Smith has convictions for forgery, theft, and fraud. (Id. at 

PageID.3914.) Smith testified that Foster asked him “for representation, for advice, 

and explained the nature and details of the case to” him. (Id. at PageID.3918.) He 

continued, “Foster explained to me that his role that he played and participated in 

was they were at a bar . . . and there was a white female by the name of Deborah K. 

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Boothby who had came to that lounge . . . [and] she had begun using a racial slur 

towards Ivory Shaver[].” (Id. at PageID.3921.) Foster then “bragged about how 

himself . . . and his other accomplices, had beat the victim . . . numerous of times 

with strikes and punches . . . . And how they had took her and placed her in a 

vehicle, drove from the Blue Star Lounge to a location, which was a dead-end 

behind the bar, and how they had ran over her.” (ECF No. 9-19, PageID.3922.) 

Two Indiana state troopers also took the stand. They stated that when they 

arrested Foster, he asked “can a person be charged with murder if he was only there 

with the person who committed the murder.” (ECF No. 9-19, PageID.3856.) When 

one of the troopers answered that someone could be charged as an accomplice to 

murder in that scenario, Foster asked if that would be true if a vehicle was 

involved. (Id. at PageID.3890.) 

In addition, Foster testified on his own behalf. He stated that he and Scottie 

Shaver were “enemies” and that there was a “big rift” in general among people from 

South Haven—like the Shavers—and people from Covert—like Foster. (ECF No. 9-

22, PageID.4408–4409.) He stated he would “never” have done anything to help 

Scottie out. (Id. at PageID.4410.) And while Foster admitted he was at the Blue 

Star Lounge on the night in question, he claimed not to have had contact with 

Ivory, Scottie, or Gill that night. (ECF No. 9-22, PageID.4414.) In the parking lot, 

he saw Boothby and stated he saw “[w]omen fighting.” (Id. at PageID.4418.) He said 

he left by himself without getting involved in the fight. (Id. at PageID.4424, 4428.) 

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Foster was tried jointly with Ivory, Scottie, and Gill, but he had a separate 

jury from the other three. Gill took the stand, but only testified before her, Scottie, 

and Ivory’s jury. As relevant here, she told her jury that though she saw Boothby 

talking to Ivory at the club, she did not remember seeing Foster, Burnette, or 

Scottie that night. (ECF No. 9-22, PageID.4564–4565.) She also testified that after 

the club closed, she and Ivory left in her car and went home. (ECF No. 9-22, 

PageID.4568.) She denied that Boothby was ever in her car, that she ever beat 

Boothby, or that she ever planned “with anyone to run” Boothby over or to kidnap 

her. (ECF No. 9-22, PageID.4576.) 

Foster’s jury found him guilty of second-degree murder and first-degree 

felony murder. (ECF No. 9-27, PageID.4986.) At sentencing, the second-degree 

murder conviction was vacated, and Foster was only sentenced for first-degree 

felony murder. Foster, 2013 WL 4033639, at *1. Foster received life without the 

possibility of parole. (ECF No. 9-30, PageID.5089.) 

Foster’s co-defendants had a hung jury and the court declared a mistrial. 

(ECF No. 9-29, PageID.5064.) Ultimately, they were re-tried and convicted. See 

People v. Shaver, Nos. 305944, 305945, 306228, 2013 WL 4864204, at *2 (Mich. Ct. 

App. Sept. 12, 2013).

 Procedural History 

Foster appealed his conviction and raised several issues, including that the 

prosecution knowingly allowed Nickerson to give false testimony that made him 

more credible in the eyes of the jury. Foster, 2013 WL 4033639, at *10. The Court of 

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Appeals disagreed. See id. And the Michigan Supreme Court denied leave to appeal 

because it was “not persuaded that the questions presented should be reviewed by 

this Court.” (ECF No. 9-32, PageID.5460.) 

Foster next turned to this Court for relief. (ECF No. 1.) But before his 

original petition was decided, Foster moved to hold his petition in abeyance, return 

to state court to exhaust additional claims, and amend his petition. (ECF Nos. 12, 

13.) The Court granted these motions in part. (ECF No. 14.) It allowed Foster to 

supplement his claim regarding Nickerson’s false testimony and held his petition in 

abeyance so Foster could pursue a motion for relief from judgment in state court. 

(Id. at PageID.5806.) 

In 2020, Foster returned to federal court with an amended petition, adding 

two claims alleging that his trial and appellate counsels were ineffective, which he 

raised in a motion for relief from judgment in state court. (ECF No. 21.) In 2022, 

after the amended petition was fully briefed, Foster moved to hold his petition in 

abeyance again. (ECF No. 24.) A few months later, he moved “for guidance” as to 

how to proceed. (ECF No. 25.) 

 Motion to Stay and Motion for Guidance 

Almost two years after Foster filed his amended habeas petition, he moved 

the Court to stay his case and hold his petition in abeyance—for the second time—

while he exhausts new state-court remedies pertaining to an affidavit he recently 

received from co-defendant Ivory Shaver. (ECF No. 24, PageID.6267.) The affidavit 

apparently states that Foster was “not inside the vehicle that has been associated in 

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the death of the victim.” (Id.) Foster plans to use this information to challenge the 

charging affidavit and the fact that he was arrested prior to the issuance of the 

charging affidavit. (Id.) 

As this Court has already stated in this case, and as the Sixth Circuit has 

long recognized, a stay and abeyance “should be available only in limited 

circumstances.” See McBride v. Skipper, — F. 4th —, No. 21-1042, 2023 WL 

4992815, at *3 (6th Cir. Aug. 4, 2023) (quoting Rhines v. Weber, 544 U.S. 269, 277 

(2005)). In furtherance of this rule, “[a] court should grant a stay and abeyance only 

when (1) ‘the district court determines there was good cause for the petitioner’s 

failure to exhaust his claims first in state court’; (2) where the unexhausted claims 

are not ‘plainly meritless’; and (3) where ‘there is no indication that the petitioner 

engaged in intentionally dilatory litigation tactics.’” Id. at *3 (quoting Rhines, 544 

U.S. at 277–78). 

Foster’s motion fails at the first factor—good cause for failure to exhaust his 

claims first in state court. “Because granting a stay effectively excuses a petitioner’s 

failure to present his claims first to the state courts, stay and abeyance is only 

appropriate when the district court determines there was good cause for the 

petitioner’s failure to exhaust his claims first in state court.” Rhines, 544 U.S. at 

277. Foster offers no explanation as to why he waited almost 12 years to seek an 

affidavit from Ivory. (ECF No. 24, PageID.6270 (Ivory’s affidavit dated August 22, 

2022); ECF No. 9-30, PageID.5072 (Foster’s sentencing on November 17, 2010).) 

Indeed, Foster does not say why he was unable to obtain this affidavit in the last 

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decade, and he certainly does not explain why he was unable to do so during the 

three years this Court gave him to exhaust additional claims. (ECF Nos. 14, 19.) 

Thus, a stay is not warranted. 

Foster also filed a motion for guidance in which he asks the Court to grant 

his motion to stay or, in the alternative, appoint counsel and grant an evidentiary 

hearing regarding Ivory’s affidavit. (ECF No. 25, PageID.6272–6273.) As explained, 

the Court denies Foster’s motion to stay. 

Further, as the amended petition before the Court does not raise claims 

related to Ivory’s affidavit, there is no need for an evidentiary hearing to adjudicate 

the petition. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“In deciding 

whether to grant an evidentiary hearing, a federal court must consider whether 

such a hearing could enable an applicant to prove the petition’s factual allegations, 

which, if true, would entitle the applicant to federal habeas relief.”). And as will be 

explained more thoroughly below—to whatever extent the affidavit proves Foster’s 

innocence—a freestanding claim of factual innocence is not for this Court to review. 

See Herrera v. Collins, 506 U.S. 390, 400–01 (1993) (“Claims of actual innocence 

based on newly discovered evidence have never been held to state a ground for 

federal habeas relief absent an independent constitutional violation occurring in the 

underlying state criminal proceeding. . . . This rule is grounded in the principle that 

federal habeas courts sit to ensure that individuals are not imprisoned in violation 

of the Constitution—not to correct errors of fact.”). 

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And the Court also denies Foster’s motion for appointment of counsel as 

nothing further is needed from Foster to adjudicate the amended petition. 

So his motion to stay and his motion for guidance are both denied. 

 AEDPA Standard 

Before the Court considers the substance of Foster’s petition, a word on the 

standard. 

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) (and 28 

U.S.C. § 2254 in particular) “confirm[s] that state courts are the principal forum for 

asserting constitutional challenges to state convictions.” Harrington v. Richter, 562 

U.S. 86, 103 (2011); see also Cullen v. Pinholster, 563 U.S. 170, 182 (2011). So to 

obtain relief in federal court, habeas petitioners who challenge “a matter 

‘adjudicated on the merits in State court’ [must] show that the relevant state court 

‘decision’ (1) ‘was contrary to, or involved an unreasonable application of, clearly 

established Federal law,’ or (2) ‘was based on an unreasonable determination of the 

facts in light of the evidence presented in the State court proceedings.’” Wilson v. 

Sellers, 138 S. Ct. 1188, 1191 (2018) (quoting 28 U.S.C. § 2254(d)). “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, 562 U.S. at 101. And a state court’s factual determinations are 

presumed correct on federal habeas review, 28 U.S.C. § 2254(e)(1), with review 

being “limited to the record that was before the state court.” Cullen v. Pinholster, 

563 U.S. 170, 181 (2011). But if the state courts did not adjudicate a claim “on the 

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merits,” “AEDPA . . . does not apply and [this Court] will review the claim de novo.” 

Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014). 

So before proceeding, the Court must determine if the state courts 

adjudicated Foster’s claims on the merits. 

Foster’s due-process claim was raised in his direct appeal, and the Michigan 

Court of Appeals issued a decision on the merits. (See ECF No. 9-31, PageID.5101.) 

So the Court must defer to that decision. 

Foster’s ineffective-assistance-of-counsel claims were raised in his motion for 

relief from judgment after his direct appeal and adjudicated on the merits by the 

trial court. (ECF No. 23-1, PageID.6085, 6090.) But in its order, the trial court also 

referenced Michigan Court Rule 6.508(D)(3), which states that “[t]he court may not 

grant relief to the defendant if the motion . . . alleges grounds for relief, other than 

jurisdictional defects, which could have been raised on appeal from the conviction 

and sentence or in a prior motion under this subchapter, unless the defendant 

demonstrates . . . good cause” or “actual prejudice[.]” The rule goes on to state that 

“[t]he court may waive the ‘good cause’ requirement . . . if it concludes that there is 

a significant possibility that the defendant is innocent of the crime.” Id. The trial 

court stated that it did “not conclude that there is a significant possibility that 

Defendant is innocent, so the court will not waive the ‘good cause’ requirement.” 

(ECF No. 23-1, PageID.6082.) But later—as the Warden concedes—the trial court 

evaluated both claims on the merits. (Id. at PageID.6085, 6090; see also ECF No. 22, 

PageID.5953.) The Michigan Court of Appeals later denied leave to appeal, stating 

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“defendant has failed to establish that the trial court erred in denying the motion 

for relief from judgment.” (Id. at PageID.5976.) 

Supreme Court precedent is clear that such a denial should be presumed to 

be on the merits, and thus, AEDPA’s deferential standard of review applies to the 

ineffective-assistance-of-counsel claims as well. See Harrington, 562 U.S. at 99 

(considering a summary denial and holding that “[w]hen a federal claim has been 

presented to a state court and the state court has denied relief, it may be presumed 

that the state court adjudicated the claim on the merits in the absence of any 

indication or state-law procedural principles to the contrary”). Though the trial 

court referenced a Michigan Court Rule that could have justified a ruling on 

procedural grounds, it also went on to address the claim on the merits. It does not 

appear to have decided anything under the rule. And the Michigan Court of Appeals 

did not indicate that its dismissal was procedural, as it does not cite any procedural 

rules and the decision states that it was based on lack of error by the trial court. 

(See ECF No. 23-1, PageID.5976.) 

So in considering Foster’s petition, the Court will focus on whether the state 

court’s decision “was contrary to, or involved an unreasonable application of, clearly 

established Federal law[.]” See 28 U.S.C. § 2254. And because the Michigan 

Supreme Court did not provide reasons for its holding on direct appeal, and the 

Michigan Court of Appeals did not provide reasons for its holding as to the motion 

for relief from judgment, the Court will “look through the unexplained decision” to 

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the Michigan Court of Appeals’ and Michigan trial courts’ decisions which “provide 

a relevant rationale[.]” See Wilson, 138 S. Ct. at 1192. 

 Petition for Writ of Habeas Corpus 

 Due-Process Claim 

Foster argues that his right to due process was violated when the prosecutor 

failed to correct Keith Nickerson’s false testimony. (ECF No. 21, PageID.5877.) 

A conviction obtained through the use of false evidence violates a defendant’s 

due-process rights. Napue v. Illinois, 360 U.S. 264, 269 (1959). “[D]eliberate 

deception of a court and jurors by the presentation of known false evidence is 

incompatible with ‘rudimentary demands of justice.’” Giglio v. United States, 405 

U.S. 150, 153 (1972) (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)). “The 

same result obtains when the State, although not soliciting false evidence, allows it 

to go uncorrected when it appears.” Napue, 360 U.S. at 269. To prove that the 

prosecutor’s failure to correct false testimony resulted in a violation of due process, 

a petitioner must demonstrate that: (1) the statement was actually false; (2) the 

statement was material; and (3) the prosecution knew it was false. Rosencrantz v. 

Lafler, 568 F.3d 577, 583–84 (6th Cir. 2009). 

Prior to trial, Nickerson shared a cell with Foster at the Van Buren County 

Jail while Nickerson awaited sentencing in federal court for a bank-robbery 

conviction. (ECF No. 9-19, PageID.3966–3967 (Nickerson’s testimony at Foster’s 

trial).) Nickerson testified that Foster told him that he had kicked Boothby in the 

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head in the parking lot outside of the Blue Star Lounge and was in one of the 

vehicles that ran over Boothby. (ECF No. 9-19, PageID.3978–79.) 

However, Foster takes issue with an earlier portion of Nickerson’s testimony. 

Likely to blunt the inevitable cross-examination on bias, the prosecutor asked 

Nickerson, “in March [2010,] did I indicate to you that I would do nothing for you in 

regard to any cases that you had pending?” (ECF No. 9-19, PageID.3965–3966.) 

Nickerson responded, “Nothing.” (Id. at PageID.3966.) The questioning went on, 

“Have I done anything on your behalf?” (Id.) Nickerson again responded, “Nothing.” 

(Id.) Nickerson also testified that the prosecutor had not “offered to do anything” on 

his behalf for testifying and that he knew of no benefit that he “could receive for 

testifying[.]” (Id. at PageID.3981.) But he also stated that his attorney had 

mentioned Nickerson’s “involvement in [Foster’s] case” to the sentencing judge in 

his bank-robbery case. (Id. at PageID.3981–3982.) 

At first, cross-examination evoked similar denials from Nickerson. Though 

Nickerson agreed that the U.S. Attorney’s office filed what is known as a “5K” or 

cooperation motion for a downward departure from the sentencing guidelines in his 

bank-robbery case, and that he received a below-guidelines sentence, he testified 

that the departure from the guidelines’ range was not because of the 5K motion. 

(ECF No. 9-19, PageID.3984.) But Nickerson also stated that he had not seen the 

U.S. Attorney’s 5K motion. (Id. at PageID.3985.) 

When asked whether he heard “the federal Judge mention a number of times 

that based upon [his] substantial assistance in a state murder case, along with some 

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dispute about a definition of career criminal, that he was going to give [him] a 

three-level departure below [his] original guidelines,” Nickerson responded, “The 

departure was because of the close proximity of my previous offenses.” (Id. at 

PageID.3985.) When asked again whether the federal judge stated he was going to 

give Nickerson a “benefit,” Nickerson stated, “No, I don’t remember specifically 

what you are saying. I got credit for this, but I didn’t get credit for this. That is not 

what has happened.” (Id. at PageID.3985–3986.) But Nickerson admitted that his 

attorney “may” have told the federal judge that Nickerson “should be given a break 

because of [his] cooperation in a murder case[.]” (Id. at PageID.3986.) And he 

conceded that the federal government “didn’t put up an argument” when defense 

counsel made that request. (Id. at PageID.3986.) 

Foster’s attorney also asked Nickerson whether the federal judge left open 

the possibility of a future modification for Nickerson’s continued cooperation, to 

which Nickerson responded, “I’m not sure” and “I have no control over anything like 

that.” (Id. at PageID.3987.) But he did eventually say he remembered the federal 

judge saying that and it “is possible” that his sentence could be reevaluated. (Id. at 

PageID.3987–3988.) Nickerson also admitted that he wrote a letter to the federal 

judge—which was first sent to his attorney—where he described Foster’s confession. 

(ECF No. 9-19, PageID.3990–3992.) And Foster’s attorney was also able to elicit 

some inconsistencies between Nickerson’s letter and the testimony he provided in 

court. (See id. at PageID.3997–3998, 4008.) 

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Foster argues that this amounted to a violation of the Due Process Clause 

because the prosecutor knowingly allowed Nickerson to give false testimony. 

The falsity of Nickerson’s testimony is somewhat supported by documents 

from Nickerson’s federal criminal case. As elicited by defense counsel on crossexamination, the U.S. Attorney in Nickerson’s bank-robbery case filed a motion for 

downward departure, which stated, 

While in custody, the defendant heard a cellmate named Edward 

Foster discussing his role in the 1998 beating death of a young woman 

named Debra Boothby. The defendant related this information to his 

attorney, who passed it on to the FBI. The FBI turned it over to the 

Michigan State Police detective who was investigating this cold 

case. . . . The defendant’s testimony proved to be instrumental in 

murder charges subsequently brought against five individuals by the 

Michigan Attorney General in People v. Ivory Shaver et al, No. 10-

17030-FC (36 Cir. 2010). Undersigned counsel has spoken to [the 

prosecuting attorney in Foster’s criminal case] about the defendant’s 

assistance and was advised that the defendant testified at a 

preliminary examination and was an important witness in the case. 

The trial is scheduled to commence in June, where the defendant is 

expected to testify again. 

Mot. for Downward Departure under 5K1.1, United States v. Johnson, 1:09-cr-00311 

(W.D. Mich. Apr. 7, 2010) (available on this docket at ECF No. 1-1, PageID.99). And 

during the April 2010 sentencing hearing, the federal judge stated, 

As far as the 5K motion is concerned, the Court intends to grant it. I 

have considered only the defendant’s cooperation to date, as I am 

required to do. I have not factored in any future cooperation the 

defendant may lend to the prosecution of others. . . . Given the fact 

that Mr. Nickerson decided to cooperate, in light of potential harm to 

himself and to his family, I think the three level 5K motion is 

appropriate based on his live testimony at the state preliminary 

examination. As I’ve said before, I have only considered Mr. 

Nickerson’s cooperation to date. It does not contemplate any further 

potential of a Rule 35 [reduction of sentence] as I adjudicate this case 

today. 

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Sentencing Tr., p. 20, 25, United States v. Johnson, 1:09-cr-00311 (W.D. Mich. 

Aug. 5, 2010) (available on this docket at ECF No. 1-2, PageID.147). So Nickerson’s 

testimony that he did not receive a downward departure because of the U.S. 

Attorney’s motion—which was based on his cooperation against Foster—was false. 

Less clear is the technical accuracy of his testimony that he received “nothing” from 

the prosecutor in Foster’s case. See Foster, 2013 WL 4033639, at *12 (“However, 

while the U.S. Attorney did state in its 5K motion that it spoke to the prosecutor in 

this case, it does not state that the prosecutor in this case promised Nickerson 

anything for his testimony or did anything other than provide information to the 

U.S. Attorney. It is not clear who initiated the contact between the two or that the 

prosecutor was advised that a 5K motion would be filed. And, there is no indication 

that the state prosecutor promised Nickerson any benefit for his cooperation or 

testimony.”). And Nickerson’s testimony that he did not get credit for “this” may 

have intended to convey that the sentencing judge did not consider his future trial 

testimony against Foster, which appears to be an accurate reflection of the federal 

sentencing judge’s reasoning. 

Nickerson’s testimony that the downward departure was due to the proximity 

of his previous offenses appears to be accurate, too. The sentencing court stated 

that: 

The career offender guideline calls for Criminal History Category VI. 

Mr. Nickerson would have been Career History Category VI, even 

without the application of the career offender guideline. What is 

relevant to an assessment of whether the career offender guideline 

overstates the seriousness of Mr. Nickerson’s prior behavior is the 

application of the career offender guideline in the levels that are 

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assigned to his offense as opposed to him moving to Career History 

Category VII, so to that extent, I think the defense has an argument, 

because indeed, it is a six level difference . . . jumping from Level 25 to 

Level 19. So I believe the defendant is entitled to some consideration 

for that fact, and I’m going to grant the request for a variance on that 

ground. 

Sentencing Tr., p. 23, United States v. Johnson, 1:09-cr-00311 (W.D. Mich. Aug. 5, 

2010). But at bottom, Nickerson was not stating the whole truth, as he did receive a 

downward departure for his cooperation against Foster as of April 2010. 

The Michigan Court of Appeals agreed with Foster—indeed, it found that it 

was “abundantly clear” that portions of Nickerson’s testimony were false. Foster, 

2013 WL 4033639, at *12. It stated that “[Nickerson] did, indeed, receive a benefit 

from the 5K motion (which was based on his cooperation in the instant matter) in 

the form of a reduced sentence and yet unequivocally testified that he did not 

receive a reduction in his sentence because of his assistance in the instant matter.” 

Id. 

So this Court’s review of Foster’s due-process claim comes down to whether 

the Michigan Court of Appeals acted contrary to federal law in finding that “[i]t 

cannot . . . be concluded that defendant’s conviction was thus obtained through 

perjured testimony.” Foster, 2013 WL 4033639, at *12. The state court reasoned 

that although the prosecutor did not clarify or correct Nickerson’s false testimony, 

defense counsel “cross-examined Nickerson extensively on this issue and elicited the 

pertinent information.” Id. The court ultimately held that “the jury heard what 

defendant ultimately sought to have them hear—that Nickerson received a benefit 

for his cooperation and testimony and thus had a motive to testify as he did against 

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defendant.” Id. The state court further noted that other significant evidence 

connected Foster to Boothby’s death, so it was unlikely that Nickerson’s false 

testimony as to his credibility would have changed the outcome. Id. at *13. 

The Court concludes that, at the very least, reasonable jurists could debate 

whether Nickerson’s false testimony would have changed the jury’s verdict. See 

Harrington, 562 U.S. 86, 101 (2011). Thus, it will deny habeas relief on this issue as 

the false testimony was harmless. 

To “prove that the prosecutor’s failure to correct false testimony violated due 

process rights, a petitioner must demonstrate that . . . the statement was 

material[.]” McNeill v. Bagley, 10 F.4th 588, 604 (6th Cir. 2021), cert. denied sub 

nom. McNeill v. Shoop, 142 S. Ct. 1377 (2022) (citing Rosencrantz v. Lafler, 568 

F.3d 577, 583–84 (6th Cir. 2009)). Though similar to the standard used in Brady, a 

false-testimony claim has a slightly different materiality standard: “We weigh the 

materiality of Brady withholding claims by asking whether ‘there is a reasonable 

probability that, had the evidence been disclosed to the defense, the result of the 

proceeding would have been different.’ By contrast, for Brady/Giglio claims, we ask 

only ‘if there is any reasonable likelihood that the false testimony could have 

affected the judgment of the jury.’ The distinction matters here, because while a 

traditional Brady materiality analysis obviates a later harmless-error 

review . . . courts may excuse [false-testimony] violations involving known and 

materially false statements as harmless error.” See Rosencrantz v. Lafler, 568 F.3d 

577, 584 (6th Cir. 2009); see also Wise v. Horton, No. 20-1507, 2020 WL7048691, at 

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*4 (6th Cir. Oct. 1, 2020) (“[O]rdinarily, claims of perjury must also survive a 

harmless-error analysis.”). So the Court will assume materiality in favor of Foster 

and focus its analysis on whether the materially false statements were harmless. 

See Rosencrantz, 568 F.3d at 588 (“Having assumed materiality and therefore 

assumed a constitutional error, we now consider the harmlessness of that error.”). 

The Court agrees with the Michigan Court of Appeals that defense counsel 

raised the falsity of Nickerson’s testimony before the jury, which decreased the 

likelihood that “the result of the proceeding would have been different” had the false 

testimony been corrected. See Rosencratz, 568 F.3d at 584. Indeed, it appears that 

much of the false testimony was corrected by defense counsel. Though the point 

perhaps would have been more effective if Nickerson had never testified that he had 

received “nothing” for his cooperation or that the U.S. Attorney’s 5K motion did not 

impact his sentence, defense counsel was able to elicit Nickerson’s agreement that 

he may be eligible for a future reduction in sentence for his trial testimony, that his 

attorney made arguments regarding his cooperation in this case during sentencing 

and the U.S. attorney did not disagree, and that he did indeed receive a belowguidelines sentence. And the Court cannot find that the weight of this evidence was 

impacted in any way by it being elicited on cross, rather than direct, examination. 

See Brooks v. Tennessee, 626 F.3d 878, 896 (6th Cir. 2010) (finding lack of 

materiality under the Brady-Napue-Giglio standard because “both the prosecution 

and the defense apparently had access to the TBI reports during trial, and therefore 

both parties were in equal positions to clarify Agent Phillips’s testimony”). 

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And Nickerson’s credibility has little impact on the other substantial 

testimony and evidence against Foster. This included testimony from two Indiana 

state troopers that, when they arrested Foster, he asked “can a person be charged 

with murder if he was only there with the person who committed the murder.” (ECF 

No. 9-19, PageID.3856.) When one of the troopers answered that someone could be 

charged as an accomplice to murder in that scenario, Foster asked if that would be 

true if a vehicle was involved. (Id. at PageID.3890.) Disbelief in Nickerson’s 

testimony does nothing to undermine the testimony from state troopers where 

Foster implied that he was involved with Boothby’s murder. 

To this point, Foster also argues that Nickerson’s testimony made him 

“unimpeachable” and that it “allowed the State to fill in holes in their case and 

bolster the credibility of other witnesses that had acute credibility defects,” like 

Adrienne Burnette. (ECF No. 21, PageID.5887.) Burnette testified that she 

witnessed Foster “hit” Boothby when she was on the ground in the parking lot. 

(ECF No. 9-17, PageID.3231.) She also testified that she saw Foster help carry 

Boothby to the car, and eventually, that he “pulled [Boothby] on the side of the 

street and got back into [the] car and [Gill] backed up over her and rolled over her 

again.” (Id. at PageID.3234, 3254–3255.) 

But as the Court explained, Nickerson was impeached. Indeed, Foster’s 

counsel elicited several responses from Nickerson acknowledging how he could be 

benefitted from testifying against Foster and drew out other inconsistencies with 

his testimony. Further, it is unclear how Nickerson—who admittedly was not 

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involved with this case other than being Foster’s cellmate—would influence the 

jury’s decision to believe Burnette, who was an eyewitness. As Foster admits, any 

credibility issues with Burnette’s testimony were raised in front of the jury, and 

presumably, the jury believed her despite those issues given the verdict. And 

Burnette was not the only eyewitness that testified about Foster’s involvement in 

the assault on Boothby. Such eyewitness testimony has been held to be especially 

persuasive. See Strickler v. Greene, 527 U.S. 263, 293 (1999) (“We recognize the 

importance of eyewitness testimony[.]”); see also McNeill, 10 F.4th at 602 (“The 

testimony of numerous eyewitnesses . . . is unusually powerful.”). So even if 

Nickerson’s testimony was treated as completely untrustworthy, there was plenty of 

other evidence for the jury to rely on in convicting Foster—including his own 

incriminating statements to the troopers—such that he cannot show the error was 

harmful. 

Thus, in light of Foster’s counsel’s effective cross-examination of Nickerson 

and the substantial other evidence against him, the Court does not find that the 

state court unreasonably applied federal law in concluding that Nickerson’s false 

statements were immaterial or that any error was harmless. As such, this claim is 

denied. 

 Ineffective Assistance of Trial Counsel 

Foster’s second claim concerns trial counsel’s performance. He maintains that 

counsel was ineffective for failing to investigate and to call co-defendant Shevolier 

Gill to testify in Foster’s trial. 

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 Procedural Default 

Before the Court analyzes the merits, it will address the Warden’s 

procedural-default argument. See Sheffield v. Burt, 731 F. App’x 438, 441 (6th Cir. 

2018) (“[W]here a straightforward analysis of settled state procedural default law is 

possible, federal courts cannot justify bypassing the procedural default issue.”). To 

conclude that a claim is procedurally defaulted—and thus not entitled to federal 

review—the state court must have “enforce[d]” a state procedural rule against the 

petitioner. See id. 

Here, the Court finds that the state court did not do so. As a reminder, 

Michigan Court Rule 6.508(D)(3) states that the court “may not grant relief to the 

defendant if the motion . . . alleges grounds for relief . . . which could have been 

raised on appeal from the conviction or sentence . . . unless the defendant 

demonstrates . . . good cause for failure to raise such grounds on appeal or in the 

prior motion, and . . . actual irregularities that support the claim for relief.” Good 

cause may be waived if the court finds that there is a “significant possibility” the 

defendant is innocent. Id. Though, as the Warden argues, the state trial court 

referenced Michigan Court Rule 6.508(D)(3), it stated that the “claims appear to be 

posited under MCR 6.508(D)(3) and generally assert ineffective assistance of both 

trial and appellate counsel as well as actual innocence.” (ECF No. 23-1, 

PageID.6082.) The court then found that it would not waive the good-cause 

requirement for such claims based on actual innocence. (Id.) 

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But the rest of the opinion says nothing about whether the trial court found 

lack of good cause under Michigan Court Rule 6.508(D)(3). The only mention of good 

cause was that the requirement would not be waived. And the court went on to 

analyze the claims on the merits without indicating this was done in the 

alternative. (See ECF No. 23-1, PageID.6085 (“[T]his court finds neither deficient 

representation nor any irregularity on this ground.”). Since it is unclear whether a 

procedural rule was invoked, and the state court also found counsel’s decisions to be 

a matter of trial strategy, the Court finds no procedural bar was enforced. See Ylst 

v. Nunnemaker, 501 U.S. 797, 803 (1991) (“If an earlier opinion ‘fairly appear[s] to 

rest primarily upon federal law,’ we will presume that no procedural default has 

been invoked by a subsequent unexplained order that leaves the judgment or its 

consequences in place.”). So the Court finds that, because the trial court did not 

enforce a procedural bar, Foster did not procedurally default his ineffectiveassistance-of-trial-counsel claim. 

 Merits of Ineffective-Assistance-of-Counsel Claim 

Now to the merits. Foster’s co-defendant, Gill, penned a letter to her friend 

Jennifer Lloyd while Gill was awaiting trial. Gill maintains her own innocence in 

the letter. (See ECF No. 23-1, PageID.6145.) She also writes, “And wuz up with 

Malik? How in the heck did he come into play with all of this?” (Id.) The Michigan 

Department of Corrections recognizes that “Malik” is one of Foster’s aliases. See 

Offender Tracking Information System, Foster, Edward, (last accessed Aug. 11, 

Case 2:15-cv-12265-LJM-SDD ECF No. 26, PageID.6421 Filed 08/28/23 Page 26 of 33
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2023), available at https://mdocweb.state.mi.us/otis2/otis2profile.aspx? 

mdocNumber=226862. 

Gill also testified before the jury in her own trial but said very little about 

Foster. Specifically, she testified that she did not remember seeing Foster, 

Burnette, or Scottie at the club that night. (ECF No. 9-22, PageID.4564–4565.) She 

also testified that after the club closed, she and Ivory left in her car and went home. 

(ECF No. 9-22, PageID.4568.) 

Foster argues that Gill’s letter implied he had nothing to do with Boothby’s 

murder and so counsel was ineffective in failing to investigate the exculpatory 

nature of Gill’s letter and the possibility that she could testify in his defense. Even 

assuming counsel did not investigate Gill—an assertion Foster provides no evidence 

for—Foster’s claim fails. 

To prevail on habeas corpus review on an ineffective-assistance-of-counsel 

claim, Foster must show that the state court’s denial of his claim was contrary to, or 

an unreasonable application of, Strickland v. Washington, 466 U.S. 668 (1984). 

Strickland established a two-prong test for claims of ineffective assistance of 

counsel: (1) that counsel’s performance was deficient, and (2) that the deficient 

performance prejudiced the defense. Id. at 687. 

As Gill testified in front of her own jury about this same incident, the Court 

has a good understanding of what she likely would have said if Foster’s counsel 

called her as a witness. And the Court focuses on this testimony—rather than the 

letter—because the letter would have to be admitted through her. So if defense 

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counsel reasonably did not call Gill to testify because of potential issues with what 

she would say, it follows that it was not unreasonable for counsel to not seek 

admission of the letter. See Fitchett v. Perry, 644 F. App’x 485, 490–491 (6th Cir. 

2016) (finding no ineffective assistance of counsel where potential evidence was 

inadmissible). However, the Court also notes that Gill’s letter is not necessarily 

exculpatory. Gill only asks her friend how Foster “come[s] into play with all of this.” 

(ECF No. 23-1, PageID.6145.) This could either mean—as Foster argues—that Gill 

was confused about Foster’s involvement because he was not involved or—as the 

prosecutor would likely argue—that she does not know how he was identified after 

so much time. (Putting aside, of course, the other alternative that the letter was 

written for purely self-serving purposes.) And, because Gill maintained her 

innocence in the letter, it is unclear how she would have any knowledge of Boothby’s 

true killers. So even if the letter did suggest that Foster was innocent, it would only 

do so in a very particular circumstance—namely if Gill lied about her own 

involvement but told the truth about Foster’s.

The same can be said about Gill’s testimony. If Foster’s jury were allowed to 

hear Gill’s testimony, the jury may have believed that she and Ivory “went home” 

right after the club shut down (ECF No. 9-22, PageID.4568), but still found that 

Foster was involved in the murder. Put differently, if Gill was not involved with 

Boothby’s murder as she claimed, she would have no knowledge of who committed 

Boothby’s murder and thus could not absolve Foster. And if that is the case, her 

testimony would do little to convince the jury that Foster was not in fact involved 

Case 2:15-cv-12265-LJM-SDD ECF No. 26, PageID.6423 Filed 08/28/23 Page 28 of 33
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with the murder—especially because Foster took the stand and said he was at the 

club on the night in question. In short, many of Foster’s arguments for why Gill 

would have been an important witness to investigate and potentially call assume 

that Gill “was an eyewitness to the crime[.]” (See ECF No. 21, PageID.5890–5891.) 

But the very letter he relies on indicates that she was not. So either the jury would 

have disbelieved Gill’s testimony that she was not involved—thus casting doubt on 

her testimony that she did not see Foster—or they would have believed that she 

was not involved, and thus, had no knowledge of what occurred between Foster and 

Boothby. 

This issue with Gill’s testimony infects both prongs of the Strickland test. On 

the deficiency prong, he cannot overcome “the presumption that the challenged 

conduct might be considered sound trial strategy.” See Haight v. Jordan, 59 F.4th 

817, 832 (6th Cir. 2023). The Court agrees with the state trial court that defense 

counsel’s decision not to call Gill was not deficient (ECF No. 23-1, PageID.6085), but 

rather “within the wide range of reasonable professional assistance[.]” See Haight, 

59 F.4th at 832. A reasonable attorney may not risk calling a co-defendant to the 

stand who claims they did not see their client (when their client testified that he 

was at the scene) and who claims they had no involvement with the crime. 

Crediting Gill’s testimony may not have helped Foster at all and could have led to a 

situation where Foster’s testimony was pitted against Gill’s if there were any 

inconsistencies. This is especially true because Foster’s defense at trial was that 

there was a feud between South Haven and Covert such that he would have never 

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helped the Shavers or Gill with a murder, lending credence to a jury contrasting 

Foster to the other three defendants. See (ECF No. 9-22, PageID.4405–4410 (Foster 

testifying regarding the rivalry between the two communities and testifying that he 

and Scottie Shaver were “enemies” at the time of the murder)); see also Fitchett v. 

Perry, 644 F. App’x 485, 491 (6th Cir. 2016) (“The Supreme Court has held that 

counsel is not ineffective for failing to investigate if ‘further investigation would 

have been fruitless,’ because the additional evidence ‘would be of little help,’ ‘can 

reasonably be expected to be only cumulative,’ or carries ‘serious risks’ of ‘expos[ing 

defendant’s story] as an invention[.]’” (internal citations omitted)). 

Further, other witnesses testified that they had not seen Foster at the club, 

so Gill’s testimony added nothing more to the evidence before the jury. See (ECF No. 

9-15, PageID.2865, 2887 (witness testifying that she did not remember seeing 

Foster at the club or outside in the parking lot while Ivory Shaver, Scottie Shaver, 

and Gill are hitting her); ECF No. 9-18, PageID.3583, 3587, 3589, 3599 (witness 

stating she only saw Scottie and Ivory hitting Boothby and taking her to the car, 

that she saw a woman in the car with Scottie and Ivory, and that Foster “went and 

got in his vehicle and left”); ECF No. 9-16, PageID.3081, 3085 (witness only 

identifying Scottie, Ivory, and Gill in the parking lot)); see also Fitchett, 644 F. App’x 

at 491. So the trial court did not err in finding that Foster’s trial counsel performed 

within reason by not calling Gill.

As for prejudice, the trial court did not make any clear finding on that prong 

as to the issue involving Gill. (See ECF No. 23-1, PageID.6085 (“Thus, while trial 

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counsel may not have addressed the issue in the precise manner desired by 

Defendant, this court finds neither deficient representation nor any irregularity on 

this ground.”).) So the Court will review this prong de novo. See Haight, 59 F.4th at 

832. 

Even so, Foster has failed to 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 831. “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694). 

Gill’s testimony was not exculpatory as to Foster—she merely denied seeing him 

that night, even though he was at the club, which could still mean that he was 

involved in the crime without her knowledge. True, the testimony could have 

corroborated Foster’s own testimony that he did not see Gill or Shaver that night. 

But it also could have led the jury to believe that Gill would not have known about 

Foster’s whereabouts and conclude that Foster simply acted outside of Gill’s 

presence given the other incriminating evidence against him. In short, Gill’s 

testimony was not so favorable to Foster that this Court would now have reason to 

believe that the jury’s verdict would have changed. 

So Foster’s ineffective-assistance-of-trial-counsel claim is denied. 

 Ineffective Assistance of Appellate Counsel 

Foster claims his appellate counsel was ineffective for failing to raise the 

ineffective-assistance-of-trial-counsel claim and for failing to investigate Gill as a 

witness on his direct appeal. (ECF No. 21, PageID.5899.) Because “[c]ounsel is not 

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ineffective for failing to raise a meritless defense or issue,” this claim also fails. See 

Springer v. Howard, No. 21-1022, 2021 WL 3868316, at *3 (6th Cir. June 4, 2021) 

(citing Sutton v. Bell, 645 F.3d 752, 755 (6th Cir. 2011)). 

 Innocence 

Foster also asserts his innocence, arguing that the Court should address the 

merits of his ineffective-assistance claims as to trial and appellate counsel as well 

as his actual innocence. (ECF No. 21, PageID.5904.) 

“Claims of actual innocence based on newly discovered evidence have never 

been held to state a ground for federal habeas relief absent an independent 

constitutional violation occurring in the underlying state criminal proceeding. . . . 

This rule is grounded in the principle that federal habeas courts sit to ensure that 

individuals are not imprisoned in violation of the Constitution-not to correct errors 

of fact.” Herrera v. Collins, 506 U.S. 390, 400–01 (1993). So to the extent Foster asks 

this Court to evaluate his factual innocence, it declines to do so. 

On the other hand, showing actual innocence can provide “a ‘gateway’ for the 

habeas petitioner to have his [or her] otherwise barred constitutional claim 

considered on the merits.” Smith v. Nagy, 962 F.3d 192, 206 (6th Cir. 2020) 

(internal citation omitted). This type of claim “is procedural, rather than 

substantive, meaning that it does not by itself provide a basis for relief.” Id. 

But there is no need for Foster to make a showing of actual innocence as the 

Court addressed all of his habeas claims on the merits. So the Court also declines to 

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evaluate any actual-innocence arguments as “gateway” claims, as such claims are 

unnecessary here. 

 Conclusion 

For the foregoing reasons, Foster’s amended habeas petition (ECF No. 21) is 

DENIED. A separate order on the certificate of appealability and proceeding in 

forma pauperis on appeal and judgment will follow. 

SO ORDERED. 

Dated: August 28, 2023 

 

 s/Laurie J. Michelson 

 LAURIE J. MICHELSON 

 UNITED STATES DISTRICT JUDGE 

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