UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CHRISTOPHER M. JONES, 

 

Petitioner, Case No. 4:15-cv-12239 

 Hon. Terrence G. Berg 

v. 

THOMAS WINN, 

Respondent. 

___________________________________/ 

OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS 

CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) 

DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS

This is a habeas case brought by a Michigan prisoner under 28 U.S.C. ' 2254. 

Petitioner Christopher M. Jones was convicted after a jury trial in the Wayne Circuit 

Court of first-degree murder, MICH. COMP. LAWS §750.316, and arson of a dwelling 

house. MICH. COMP. LAWS §750.72. He was sentenced as a third-time habitual felony 

offender to concurrent terms of life for the murder conviction and 162 months to 

forty years for the arson conviction. 

The petition raises four claims: (1) the police failed to exercise due diligence in 

securing the attendance of a key witness which resulted in the erroneous admission 

of the witness’s prior testimony, (2) insufficient evidence was presented at trial to 

sustain Petitioner’s convictions, (3) Petitioner was denied the effective assistance of 

counsel for failing to object to the admission of the prior testimony, and (4) trial 

counsel was ineffective for failing to investigate challenges to the credibility of the 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 1 of 17 Pg ID 953
missing witness. 

The Court will deny the petition because the state court adjudication of 

Petitioner’s claims did not involve an unreasonable application of clearly established 

Supreme Court law. The Court will also deny Petitioner a certificate of appealability 

and permission to proceed on appeal in forma pauperis. 

I. Background 

This Court recites verbatim the relevant facts relied upon by the Michigan 

Court of Appeals, which 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): 

Defendant’s convictions arise out of the August 5, 2011, stabbing 

death of Stephen Brinkley and the burning of Brinkley's home the same 

day. During the months preceding the crimes, defendant lived with 

Brinkley. In the early morning hours of August 5, 2011, the victim's 

neighbor, Troy Dunomes, who resided directly across the street from the 

victim, observed a man he identified as defendant exit the front door of 

the victim’s home and walk away, without screaming, yelling, or saying 

anything. Dunomes noticed smoke coming from the back of the victim’s 

house and grabbed his cell phone and called “911,” while defendant 

walked to the corner of the street and disappeared. Firefighters 

responded immediately and, after containing the fire, discovered the 

victim’s body inside the home. The victim had sustained multiple stab 

wounds, including wounds to his chest, abdomen, and eyeball, and had 

numerous incised wounds on his face and extremities. The medical 

examiner opined that the victim died from the stab wounds and found 

no evidence that he was alive at the time of the fire. Investigators did 

not find any evidence of a forced entry into the home and concluded that 

the fire was intentionally set. Testing by a forensic biologist revealed 

that blood collected from the interior of the front door of the victim’s 

home and from a pair of boy’s underwear found on the floor near the 

door matched defendant's DNA. Three days after the fire, defendant 

appeared at the home of Yolette Bass. Bass testified that defendant did 

not look good and had wounds on his hands. The medical examiner 

reviewed photographs of defendant’s hands taken at the time of his 

arrest and testified that the wounds were “relatively fresh” or “days 

old.” Defendant told Bass that he was in a fight and that there was a fire 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 2 of 17 Pg ID 954
at his home. Police arrested defendant at Bass’ home. Dunomes 

identified defendant in a live lineup as the man he observed leaving the 

victim's home on the morning of the fire. 

People v. Jones, No. 312113, 2014 WL 2040009, at *1 (Mich. Ct. App. May 15, 2014). 

Following his conviction and sentence, Petitioner’s appellate counsel filed a 

claim of appeal in the Michigan Court of Appeals. Counsel filed an appellate brief 

which raised the following claim: 

I. Did the Trial Court abused [sic] its discretion in finding that due 

diligence had been exercised to secure the missing, key prosecution 

witness, where, as a result of the Court’s erroneous conclusion the jury 

was ultimately denied the missing-witness instruction, and, in turn, 

Mr. Jones was denied his state and federal constitutional rights to a 

fair trial by a properly instructed jury, Sixth Amendment right of 

confrontation, and Fourteenth Amendment due process right to defend 

against the charges? 

Petitioner also filed a supplemental pro se brief, raising the following 

additional claims: 

I. Did the trial court violate Defendant’s due process rights where 

insufficient evidence was presented at trial to sustain his conviction? 

II. Was defense counsel constitutionally ineffective by failing to object 

or conducting a proper investigation? 

The Michigan Court of Appeals affirmed Jones’s conviction in an unpublished 

opinion. Jones, 2014 WL 2040009, at *5. 

Petitioner subsequently filed an application for leave to appeal in the 

Michigan Supreme Court, which raised the same claims as in the Michigan Court of 

Appeals, and an additional claim not presented to the court of appeals: 

I. The statement and testimony against Defendant which was 

testimonial and admitted by the court was not evident of any reliable 

and admissible evidence supporting the credibility of the declarant and 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 3 of 17 Pg ID 955
4 

was not challenged by defense counsel which effectively denied 

Defendant the right to present a defense. 

The Michigan Supreme Court denied the application because it was not 

persuaded that the questions presented should be reviewed by the Court. People v. 

Jones, 853 N.W.2d 362 (Mich. 2014) (unpublished table decision). 

II. Standard of Review 

28 U.S.C. § 2254(d) curtails a federal court’s review of constitutional claims 

raised by a state prisoner in a habeas corpus action if the claims were rejected on the 

merits by the state courts. Relief is barred under this section unless the state court 

adjudication was “contrary to” or resulted in an “unreasonable application of” clearly 

established Supreme Court law. 

“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies 

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

‘confronts a set of facts that are materially indistinguishable from a decision of [the 

Supreme] Court and nevertheless arrives at a result different from [this] precedent.’” 

Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. 

Taylor, 529 U.S. 362, 405-06 (2000)). 

“[T]he ‘unreasonable application’ prong of the statute permits a federal 

habeas court to ‘grant the writ if the state court identifies the correct governing legal 

principle from [the Supreme] Court but unreasonably applies that principle to the 

facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting 

Williams, 529 U.S. at 413). 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 4 of 17 Pg ID 956
5 

Demonstrating that a state court unreasonably applied clearly established 

Supreme Court law is no easy task because “[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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 

“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. . . . As a condition for obtaining habeas corpus from a 

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

being presented in federal court was so lacking in justification that there was an 

error well understood and comprehended in existing law beyond any possibility for 

fairminded disagreement.” Harrington, 562 U.S. at 103 (internal quotations 

omitted). 

III. Analysis 

A. Procedural Default 

 Respondent asserts that several of Petitioner’s claims are barred from review 

because of his procedural defaults of failing to preserve his claims at trial or by 

failing to present them to the Michigan Court of Appeals on federal grounds. 

Under the procedural default doctrine, a federal habeas court will not review a 

question of federal law if a state court’s decision rests on a substantive or procedural 

state law ground that is independent of the federal question and is adequate to 

support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 5 of 17 Pg ID 957
6 

However, procedural default is not a jurisdictional bar to review of a habeas petition 

on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). Additionally, “federal courts 

are not required to address a procedural-default issue before deciding against the 

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

Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). It may be more economical for the 

habeas court to simply review the merits of the petitioner’s claims, “for example, if it 

were easily resolvable against the habeas petitioner, whereas the procedural-bar 

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

present case, the Court deems it more efficient to proceed directly to the merits, 

especially because Petitioner alleges that his attorneys were ineffective for failing to 

preserve the defaulted claims. 

B. Admission of Prior Testimony 

 Petitioner’s first claim asserts that the trial court erroneously allowed the 

prosecutor to present Troy Dunomes’ preliminary examination testimony at trial 

where the police failed to exercise due diligence in attempting to locate Dunomes to 

present his live testimony at trial. 

 To the extent Petitioner claims that the admission of the prior testimony was 

erroneous under state law, the claim does not state a cognizable basis for granting 

habeas relief. Violations of state law and procedure that do not infringe specific 

federal constitutional protections are not cognizable claims under § 2254. Estelle v. 

McGuire, 502 U.S. 62, 67-68 (1991). Federal law does not require the production of 

eyewitnesses. Johnson v. Hofbauer, 159 F. Supp. 2d 582, 601 (E.D. Mich. 2001). 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 6 of 17 Pg ID 958
7 

“[U]nder federal law, there is no obligation on the part of the prosecutor to call 

any particular witness unless the government has reason to believe that the 

testimony would exculpate the petitioner.” Atkins v. Foltz, 856 F. 2d 192 (6th Cir. 

1988) (table) (citing United States v. Bryant, 461 F. 2d 912, 916 (6th Cir. 1972)). 

Thus, whether a prosecutor exercised due diligence in attempting to locate a res 

gestae witness in itself is outside the scope of federal habeas review. Collier, 419 Fed. 

Appx. at 559. 

Petitioner also asserts that his rights under the Confrontation Clause of the 

Sixth Amendment were violated because he was denied the opportunity to 

cross-examine Dunomes at trial. The United States Constitution’s Sixth Amendment 

Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy 

the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. 

“[T]he Sixth Amendment's right of an accused to confront the witnesses against him 

is . . . a fundamental right and is made obligatory on the States by the Fourteenth 

Amendment.” Pointer v. Texas, 380 U.S. 400, 403 (1965). The right to a trial by jury 

is based on the belief “that the ‘evidence developed’ against a defendant shall come 

from the witness stand in a public courtroom where there is full judicial protection of 

the defendant's right of confrontation, of cross-examination, and of counsel.” Id. at 

405 (quoting Turner v. State of Louisiana, 379 U.S. 466, 472-73 (1965)). The 

Confrontation Clause bars out-of-court statements that are testimonial in nature 

unless the witness is unavailable and the defendant had a prior opportunity to 

cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68 (2004). 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 7 of 17 Pg ID 959
8 

First, Petitioner challenges the trial court’s finding that Dunomes was 

unavailable because the police did not make a good-faith effort to obtain his presence 

at trial. Under federal law, “a witness is not ‘unavailable’ for purposes of the . . . 

exception to the confrontation requirement unless the prosecutorial authorities have 

made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S. 719, 

724-25 (1968). “The ultimate question is whether the witness is unavailable despite 

good-faith efforts undertaken prior to trial to locate and present that witness . . . 

[and] the prosecution bears the burden of establishing this predicate.” Ohio v. 

Roberts, 448 U.S. 56, 74-75 (1980), abrogated on other grounds by Crawford, 541 U.S. 

36. 

The Michigan Court of Appeals held that the prosecution exercised due 

diligence in attempting to locate Dunomes: 

 Having reviewed the record, we conclude that the prosecutor 

exercised due diligence in attempting to secure Dunomes’ presence at 

trial. Here, the officer in charge of the investigation became aware that 

Dunomes relocated to Louisiana and the officer located Dunomes’ new 

address through the Marshal’s Office in Louisiana. The assistant 

prosecutor then attempted to secure Dunomes’ presence at trial by 

serving him with a subpoena to appear and assuring that he received it. 

Dunomes refused to cooperate, indicating that he was unwilling to 

testify because he feared he would lose his job if he returned to 

Michigan. Dunomes refused to disclose the name of his employer. 

Thereafter, the prosecutor obtained a material witness detainer 

to apprehend Dunomes and send him to Michigan. The prosecutor sent 

the detainer to the prosecuting attorney’s office in the locality in 

Louisiana where Dunomes was believed to be residing and a court 

ordered Dunomes brought before the court on the detainer and sent to 

Michigan. The prosecutor followed-up on the detainer by contacting a 

detective in Louisiana. The detective indicated that attempts to locate 

and apprehend Dunomes were unsuccessful. The prosecutor also 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 8 of 17 Pg ID 960
9 

attempted to call Dunomes numerous times and left voicemail 

messages, but Dunomes did not respond. 

In short, these efforts were reasonable under the circumstances 

and the trial court did not abuse its discretion in holding that Dunomes 

was unavailable within the meaning of MRE 804(a)(5). Although 

defendant argues that the prosecution should have made additional 

efforts, due diligence requires the prosecution to do everything 

reasonable, not everything possible, to obtain the presence of the 

witness. People v. Eccles, 260 Mich. App. 379, 391 (2004). 

Jones, 2014 WL 2040009, at *2-3. 

This Court cannot say that the Michigan Court of Appeals’ decision that the 

prosecutor acted with due diligence to secure Dunomes’ presence at trial was 

contrary to or an unreasonable application of clearly established federal law or an 

unreasonable determination of the facts in light of the evidence presented. The 

Supreme Court has held that “[t]he lengths to which the prosecution must go to 

produce a witness . . . is a question of reasonableness.” Roberts, 448 U.S. at 74. The 

record supports a finding that the prosecution acted with reasonable diligence in this 

case. 

Second, the Court must consider whether the second prong of Crawford, a 

“prior opportunity for cross-examination,” was satisfied by Dunomes’ testimony at 

the preliminary examination. The Michigan Court of Appeals held that it was: 

In this case, defendant had the opportunity and did 

cross-examine Dunomes during the preliminary examination. 

Defendant had a similar motive to develop the testimony during the 

preliminary examination as he would have at trial—i.e., in both 

scenarios he was motivated to challenge Dunomes' assertion that he 

saw defendant leaving the crime scene at the time the fire started. 

Jones, 2014 WL 2040009, at *3. 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 9 of 17 Pg ID 961
10 

The Sixth Circuit Court of Appeals has acknowledged “there is some question 

whether a preliminary hearing necessarily offers an adequate prior opportunity for 

cross-examination for Confrontation Clause purposes.” Al-Timimi v. Jackson, 379 F. 

App'x. 435, 437 (6th Cir. 2010) (citing Vasquez v. Jones, 496 F.3d 564, 577 (6th Cir. 

2007)) (doubting whether “the opportunity to question a witness at a preliminary 

examination hearing satisfies the pre-Crawford understanding of the Confrontation 

Clause’s guarantee of an opportunity for effective cross-examination”) (internal 

quotation marks omitted)). But the Sixth Circuit Court of Appeals has further 

observed that “because there is room for reasonable debate on the issue,” a state 

court’s decision that a preliminary examination satisfies the “opportunity for 

cross-examination” requirement, “is necessarily beyond [a federal court's] power to 

remedy under § 2254, even if it turns out to be wrong.” Williams v. Bauman, 759 F.3d 

630, 636 (6th Cir. 2014) (citing White v. Woodall, ___ U.S. ___, 134 S. Ct. 1697, 1702, 

188 L. Ed. 2d 698 (2014)). Because there is no “clearly established federal law” within 

the meaning of § 2254(d)(1) contradicting the finding of the state court that cross 

examination during a preliminary hearing satisfies the requirements of Crawford, 

the Court must deny habeas relief on this claim. 

C. Sufficiency of the Evidence 

 Petitioner next asserts that insufficient evidence was presented at trial to 

sustain his convictions. 

 First, to the extent that Petitioner argues that the evidence would have been 

insufficient if Dunomes’ testimony was excluded, the claim is frivolous. “[A] 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 10 of 17 Pg ID 962
11 

reviewing court must consider all of the evidence admitted by the trial court, 

regardless of whether that evidence was admitted erroneously.” McDaniel v. Brown, 

558 U.S. 120, 131 (2010) (emphasis added); see also United States v. Clay, 667 F.3d 

689, 701 (6th Cir. 2012) (same). “Because [Petitioner’s] claim depends on his 

assertion that the evidence of his guilt was insufficient without [the preliminary 

examination testimony], it necessarily fails because consideration of that [prior 

testimony] is required for purposes of a sufficiency-of-the-evidence evaluation.” 

Sanborn v. Parker, 629 F.3d 554, 578-79 (6th Cir. 2010). 

 To the extent Petitioner asserts that insufficient evidence was presented 

even including the prior testimony, “[t]he Due Process Clause protects the accused 

against conviction except upon proof beyond a reasonable doubt of every fact 

necessary to constitute the crime with which he is charged.” In Re Winship, 397 U.S. 

358, 364 (1970). The critical inquiry on review of the sufficiency of the evidence to 

support a criminal conviction is, “whether the record evidence could reasonably 

support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 

307, 318 (1979). This inquiry, however, does not require a court to “ask itself 

whether it believes that the evidence at the trial established guilt beyond a 

reasonable doubt.” Instead, the relevant question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt. Id. 

at 318-19 (internal citation and footnote omitted) (emphasis in the original). 

To constitute first-degree murder in Michigan, the prosecution must establish 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 11 of 17 Pg ID 963
12 

that a defendant’s intentional killing of another was deliberated and premeditated. 

See Scott v. Elo, 302 F. 3d 598, 602 (6th Cir. 2002) (citing People v. Schollaert, 194 

Mich. App. 158 (1992)). The elements of premeditation and deliberation may be 

inferred from the circumstances surrounding the killing. See Hofbauer, 159 F. Supp. 

2d at 596 (citing People v. Anderson, 209 Mich. App. 527, 537 (1995)). 

Premeditation and deliberation may be inferred from the type of weapon used 

and the location of the wounds inflicted. See People v. Berry, 198 Mich. App. 123, 128 

(1993). Use of a lethal weapon will support an inference of an intent to kill. Johnson, 

159 F. Supp. 2d at 596 (citing People v. Turner, 62 Mich. App. 467, 470 (1975)). 

Finally, premeditation and intent to kill may be inferred from circumstantial 

evidence. See DeLisle v. Rivers, 161 F. 3d 370, 389 (6th Cir. 1998). 

Here, the Michigan Court of Appeals rejected Petitioner’s claim as follows: 

Dunomes indicated that he observed defendant exit the front 

door of the victim's home in the early morning and walk away calmly as 

smoke began to emerge from the home. Evidence showed that the fire 

was intentionally set after the victim was murdered. Other evidence 

showed that there were no signs of forced entry and that defendant 

lived with the victim. A rational trier of fact could reasonably infer that 

defendant started the fire in an effort to conceal his involvement in the 

murder. See People v. Cutchall, 200 Mich. App. 396, 398–40 (1993) 

(attempts to conceal involvement in a crime are probative of 

consciousness of guilt and are therefore relevant). 

Furthermore, a forensic biologist testified that blood obtained 

from the interior of the front door of the victim's home and on a pair of 

children’s underwear near the door matched defendant's DNA. Bass 

testified that defendant's [sic] had cuts on his hands when he appeared 

at her house three or four days after the fire. Medical testimony showed 

that the victim suffered defensive wounds, indicating that the victim 

attempted to stop his attacker. This evidence would have allowed a 

rational juror to conclude beyond a reasonable doubt that defendant left 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 12 of 17 Pg ID 964
13 

his own blood at the crime scene because he cut himself when he 

stabbed the victim to death with a knife. 

In sum, viewing this evidence in the light most favorable to the 

prosecution, we find that a rational trier of fact could conclude beyond a 

reasonable doubt that defendant was guilty of the charged offenses. 

Nowack, 462 Mich. at 399. Although this case consisted largely of 

circumstantial evidence, “[c]ircumstantial evidence and reasonable 

inferences arising from that evidence can constitute satisfactory proof 

of the elements of a crime.” Carines, 460 Mich. at 757. 

Jones, 2014 WL 2040009, at *4-5. 

Petitioner’s claim does not implicate an unreasonable application of the 

clearly established Supreme Court standard. Viewing the evidence most favorably to 

the prosecution, overwhelming circumstantial evidence was presented at trial to 

demonstrate that Petitioner murdered the victim. Viewed under the Jackson

framework, the evidence showed that Petitioner stabbed the victim multiple times 

and injured himself during the crime, leaving his blood at the scene. Given the 

doubly-deferential standard of review under section 2254(d) and Jackson, Petitioner 

has failed to demonstrate entitlement to habeas relief with respect to this claim. 

D. Ineffective Assistance of Counsel 

 Petitioner asserts in his third claim that his trial counsel was ineffective for 

failing to challenge the admissibility of Dunomes’ prior testimony. The Court 

interprets his fourth claim as asserting that his counsel failed to conduct an 

adequate investigation that would have led to a basis to more effectively challenge 

the credibility of Dunomes’ testimony at the preliminary examination. 

 The Michigan Court of Appeals was presented with the first portion of 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 13 of 17 Pg ID 965
14 

Petitioner’s ineffective assistance of counsel claim, and rejected it as follows: 

Next, defendant claims that trial counsel was ineffective for 

failing to object to and “investigate” Dunomes’ preliminary examination 

testimony. Contrary to defendant's assertion, counsel did object to 

Dunomes’ testimony on evidentiary grounds. There was nothing to 

investigate. Moreover, as discussed above, Dunomes’ testimony did not 

violate the Confrontation Clause; therefore, objection on constitutional 

grounds would have been futile and counsel is not ineffective for failing 

to raise a futile objection. See People v. Ericksen, 288 Mich. App. 192, 

201 (2010) (“Failing to advance a meritless argument or raise a futile 

objection does not constitute ineffective assistance of counsel.”) 

Jones, 2014 WL 2040009, at *5. 

 A defendant asserting ineffective assistance of counsel must make two 

showings. First, he “must identify the acts or omissions of counsel that are alleged 

not to have been the result of reasonable professional judgment. [We] must then 

determine whether, in light of all the circumstances, the identified acts or omissions 

were outside the wide range of professionally competent assistance.” Strickland v. 

Washington, 466 U.S. 668, 690 (1984). Second, he must demonstrate prejudice, 

meaning “that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 

694. “The standards created by Strickland and § 2254(d) are both ‘highly 

deferential,’” meaning that when applied together, our “review is ‘doubly’ so.” 

Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 689; 

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). 

 Here, the state appellate court reasonably applied this standard in finding 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 14 of 17 Pg ID 966
15 

that counsel did, in fact, challenge the admission of the prior testimony on the 

grounds that the prosecutor did not exercise due diligence in attempting to locate the 

missing witness. The trial court, the state appellate court, and this Court have found 

that the objection was meritless and that the prior testimony was properly admitted. 

Because there was no error, Petitioner’s trial counsel could not have been ineffective 

for failing to challenge the trial court’s ruling on the admission of the prior 

testimony. Mapes 

v. Coyle, 171 F.3d 408, 427 (6th Cir. 1999). 

 With respect to the failure to investigate claim, Petitioner does not provide 

any factual basis to support it. He alludes to unexplored avenues in which his 

counsel might have attacked Dunomes’ credibility, but he does not proffer any 

specific details to support his claim. Conclusory allegations of ineffective assistance 

of counsel, without any evidentiary support, do not provide a basis for habeas relief. 

See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). By failing to present any 

evidence to the state courts in support of his ineffective assistance of counsel claim, 

Petitioner is also not entitled to an evidentiary hearing on his ineffective assistance 

of counsel claim with this Court. See Cooey v. Coyle, 289 F.3d 882, 893 (6th Cir. 2002) 

(citing 28 U.S.C. § 2254(e)(2)(A)(ii)). 

Petitioner has not offered, either to the Michigan courts or to this Court, any 

evidence beyond his own vague and general assertions that there were additional 

ways to attack Dunomes’ credibility. In the absence of such proof, Petitioner is 

unable to establish that he was prejudiced by counsel’s failure to further investigate 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 15 of 17 Pg ID 967
16 

the matter. See Clark v. Waller, 490 F.3d 551, 557 (6th Cir. 2007). Petitioner’s third 

and fourth claims are therefore without merit. 

IV. Certificate of Appealability 

In order to appeal the Court=s decision, Petitioner must obtain a certificate of 

appealability. 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 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). A federal district court may 

grant or deny a certificate of appealability when the court issues a ruling on the 

habeas petition. Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002). Here, 

jurists of reason would not debate whether the petition should have been resolved in 

a different manner. The Court will therefore deny a certificate of appealability. The 

Court will also deny permission to appeal in forma pauperis because an appeal of 

this decision cannot be taken in good faith. 28 U.S.C. ' 1915(a)(3). 

V. Conclusion 

Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a 

writ of habeas corpus, 2) DENIES Petitioner’s pending motions, 3) DENIES a 

certificate 

 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 16 of 17 Pg ID 968
17 

of appealability, and 4) DENIES permission to appeal in forma pauperis. 

SO ORDERED. 

s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Dated: October 31, 2016 

Certificate of Service 

I hereby certify that this Order was electronically submitted on October 31, 

2016, using the CM/ECF system, which will send notification to each party. 

s/A. Chubb 

 Case Manager 

4:15-cv-12239-TGB-APP Doc # 11 Filed 10/31/16 Pg 17 of 17 Pg ID 969