UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LEONARD MULLINS, III,

Petitioner, Case Number 2:15-cv-11962

HONORABLE GERSHWIN A. DRAIN 

v. UNITED STATES DISTRICT JUDGE

KATHLEEN OLSON,

Respondent,

_____________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [1],

DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO 

APPEAL IN FORMA PAUPERIS

On May 27, 2015, Petitioner Leonard Mullins, III filed a petition for writ of 

habeas corpus with this Court pursuant to 28 U.S.C. § 2254.

1

 Dkt. No. 1. There, he 

challenges his convictions for operating a vehicle while under the influence of 

alcoholic liquor (“OUIL”), MICH. COMP. LAWS § 257.625(1)(a), OUIL causing 

serious impairment of a body function, MICH. COMP. LAWS § 257.625(5), operating 

a motor vehicle without a driver’s license, MICH. COMP. LAWS § 257.904(1), and 

being a fourth felony habitual offender, MICH. COMP. LAWS § 769.12. For the 

reasons that follow, Mullins’s petition for writ of habeas corpus is DENIED [1].

 1 Petitioner is no longer incarcerated, but is instead free on parole, according to his 

Michigan Department of Corrections profile. 
2

I. BACKGROUND

Petitioner was convicted following a jury trial in the Wayne County Circuit 

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

Court of Appeals—facts 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 from a motor vehicle accident in which 

a westbound gray Ford Taurus crossed into the eastbound lanes of 

Cherry Hill Road and struck an eastbound blue Ford Taurus head on. 

Muoi Thi Chung, the driver of the eastbound vehicle, sustained serious 

injuries, including several fractures to her leg. Stephen Vidaurri, a 

Westland police officer on his way to work, observed the accident and 

stopped to offer assistance. Officer Vidaurri testified that he saw a 

female, Octavia Larkins, exit the passenger side rear door of the gray 

Taurus, saw another female, Carmen Robinson, exit the front passenger 

door of the vehicle, and then saw defendant crawling from the driver’s 

seat, underneath the air bags, to the front passenger seat. Defendant then

exited the vehicle from the front and re-entered the vehicle in the rear 

and sat down in the rear passenger seat. Defendant, who was heavily 

intoxicated, told another officer that he had not been driving and that it 

was Robinson who had been driving the vehicle. The principal issue at 

trial was the identity of the driver of the vehicle.

People v. Mullins, No. 312179, 2013 WL 6481011, at *1 (Mich. Ct. App. Dec. 10, 

2013) (per curiam).

This conviction was affirmed on appeal. Id., lv. den. 846 N.W.2d 564 (Mich. 

2014). Petitioner then filed a writ of habeas corpus, which this Court held in 

abeyance so that he could return to the state courts to exhaust additional claims. 

Mullins v. Barrett, No. 15-11962, 2015 WL 4644996 (E.D. Mich. Aug. 5, 2015). 

Finally, Petitioner filed a post-conviction motion for relief from judgment with the 
3

trial court pursuant to M.C.R. 6.500, et. seq and that motion was unsuccessful. 

People v. Mullins, No. 12-000134-01-FH (Wayne Cty. Cir. Ct., Feb. 11, 2016). The 

Michigan appellate courts, too, denied Petitioner leave to appeal. People v. Mullins, 

No. 334532 (Mich. Ct. App. Oct. 26, 2016), lv. den. 898 N.W.2d 594 (2017). This 

Court subsequently granted Petitioner’s motion to lift the stay and to file an amended 

petition. Mullins v. Olson, No. 15-11962, 2017 WL 5150882 (E.D. Mich. Nov. 7, 

2017). Petitioner seeks habeas relief on the following grounds:

I. The trial court’s failure to give the jury a copy of the transcript of the 

police officer’s testimony[,] despite three requests over several days[,] 

resulted in an overly coercive verdict in violation of due process.

II. There was insufficient evidence that Petitioner was the driver.

III. Petitioner received ineffective assistance of trial counsel. When 

counsel for Mr. Mullins submitted a motion for the trial court to appoint 

an expert witness the state produced the wrong person. Trial counsel, 

however, withdrew said motion without any knowledge or consent 

from [Mullins], which denied him the due process of the Sixth 

Amendment and to a fair trial.

IV. Petitioner received ineffective assistance of appellate counsel, who 

would not raise these claims during the direct appeal because counsel 

stated, the argument was without merit. Appellate counsel’s conduct 

fell below prevailing norms which denied Mr. Mullins due process 

under the Sixth Amendment.

V. Petitioner contends that the prosecutor was aware of the evidence 

that was being withheld which denied him the full panoply of protection 

afforded to criminal defendants by the Constitution. This deprived Mr.

Mullins of his due process of the Sixth Amendment and Fourteenth 

Amendment.

See Dkt. No. 1, p. 8 (Pg. ID 8); see also Dkt. No. 20, p. 5 (Pg. ID 53). 
4

II. STANDARD OF REVIEW

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

Penalty Act of 1996 (“AEDPA”), establishes 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.

28 U.S.C. § 2254(d).

A state court decision is contrary to Supreme Court precedent in either of two 

ways. “First, a state-court decision is contrary to [Supreme Court] precedent if the 

state court arrives at a conclusion opposite to that reached by [the Supreme Court]

on a question of law.” See Williams v. Taylor, 529 U.S. 362, 405–06 (2000) (citing 

Green v. French, 143 F.3d 865, 869–70 (1998)). And under the second avenue, “a 

state-court decision is also contrary to [Supreme Court] precedent if the state court 

confronts facts that are materially indistinguishable from a relevant Supreme Court 

precedent and arrives at a result opposite to [that of the Supreme Court].” Id. (citing 

Green, 143 F.3d at 869–70). An unreasonable application occurs when “a state court 
5

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 411. “[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)). Therefore, to obtain habeas relief in federal 

court, a state prisoner is required to show that the state court’s rejection of his claim 

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

comprehended in existing law beyond any possibility for fairminded disagreement.” 

Id. at 103. A habeas petitioner should be denied relief as long as it is within the 

“realm of possibility” that fair-minded jurists could find the state court decision to 

be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).

Petitioner’s first claim was reviewed under a plain error standard because he 

failed to preserve the claim in the trial court. AEDPA deference applies to any 

underlying plain-error analysis of a procedurally defaulted claim. See Stewart v. 

Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017). Petitioner’s third, fourth, and fifth 

claims were denied in part by the trial court on post-conviction review pursuant to 
6

M.C.R. 6.508(D)(3), on the grounds that Petitioner had failed to show cause and 

prejudice for not raising these claims on his direct appeal. Although the state court 

judge mentioned M.C.R. 6.508(D)(3), he alternatively rejected the claims on the 

merits and thus AEDPA’s deferential standard of review also applies to his opinion. 

See Moritz v. Lafler, 525 F. App’x. 277, 284 (6th Cir. 2013).2

 

III. DISCUSSION

A. Claim #1. Coerced verdict.

Petitioner first alleges that the trial judge coerced the jury’s verdict when he 

refused the jury’s request for a transcript of Officer Vidaurri’s testimony or to have 

his testimony read back to the jury.

The Michigan Court of Appeals rejected petitioner’s claim, concluding that:

The trial court advised the jury in response to its first request that a 

transcript of Officer Vidaurri’s testimony was not then available and 

that the jurors should rely on their collective memories to remember his 

testimony, but if that did not work a transcript could be prepared but it 

would not be available that day. After one of the jurors was replaced by 

an alternate juror and the jury began its deliberations anew, it made 

another request for Officer Vidaurri’s testimony. The court again 

 2 Respondent urges this Court to deny all four claims on the ground that they are 

procedurally defaulted. 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). In addition, 

“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)). “Judicial economy 

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

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

complicated issues of state law.” Lambrix, 520 U.S. at 525. This Court believes 

that it would be easier to address the merits of the claims in this case. 
7

advised the jurors ‘to use you collective memories and see if that will 

help you remember the testimony,’ but also added, ‘[i]f not, send us out 

another note and we will prepare a transcript although it will take some 

time to get done.’ On both occasions, defense counsel indicated that the 

trial court’s response was acceptable to defendant. 

. . . 

[A] trial court does not abuse its discretion in responding to a request 

for testimony if it does not foreclose the possibility of having the 

testimony re-read at a later juncture. Contrary to what defendant argues, 

the trial court’s instructions did not convey to the jury that the 

possibility of receiving Officer Vidaurri’s testimony at a later juncture 

was foreclosed. Rather, the trial court clearly indicated to the jurors that 

if their collective memories could not enable them to remember the 

testimony, a transcript could be prepared, but it would take some time. 

At no time did the court foreclose the possibility of producing the 

requested testimony.

Mullins, 2013 WL 6481011, at *1–2.

A defendant in a criminal case has the right to an uncoerced jury verdict. 

Lowenfield v. Phelps, 484 U.S. 231, 241 (1988). A defendant’s allegation that the 

jury was improperly coerced requires a court to “consider the supplemental charge 

given by the trial court ‘in its context and under all the circumstances.’ ” Id. at 237 

(quoting Jenkins v. United States, 380 U.S. 445, 446 (1965)).

The Constitution does not require that a jury be provided with transcripts of

witness testimony. See Bradley v. Birkett, 192 F. App’x. 468, 477 (6th Cir. 2006). 

Indeed, “Petitioner has not cited any Supreme Court decision that requires judges to 

re-read testimony or to provide transcripts of testimony to jurors on request.” Friday 

v. Straub, 175 F. Supp. 2d 933, 939 (E.D. Mich. 2001). A habeas petitioner’s claim 
8

that a state trial court violated his or her right to a fair trial by refusing to grant a jury 

request for transcripts “is not cognizable in a habeas proceeding.” Spalla v. Foltz,

615 F. Supp. 224, 233–34 (E.D. Mich. 1985); see also Bradley, 192 F. App’x at 477.

Indeed, another court in this district recently denied habeas relief on an identical 

claim. See McGhee v. MacLaren, No. 14-CV-14564, 2017 WL 2189442, at *2, 4 

(E.D. Mich. May 18, 2017) (Parker, J.). 

In the present case, the judge’s instruction to the jury was not unduly coercive 

because he did not foreclose the jurors from having Officer Vidaurri’s testimony 

being read back to them. Rather, the judge merely informed the jury that it would 

take some time to prepare the transcript and asked the jurors to first attempt to rely 

on their collective memories. Moreover, in the absence of a Supreme Court case 

holding that a state trial judge must re-read witness testimony or provide transcripts 

of witness testimony to jurors upon request, the Michigan Court of Appeals’ 

rejection of Petitioner’s claim was not an unreasonable application of clearly 

established federal law. See Wright v. Van Patten, 552 U.S. 120, 126 (2008); Carey 

v. Musladin, 549 U.S. 70, 77 (2006). Petitioner, therefore, is not entitled to relief on 

his first claim.

B. Claim #2. Sufficiency of evidence.

Petitioner asserts that there was insufficient evidence to establish his identity 

as the driver of the motor vehicle so as to sustain his convictions.
9

The Michigan Court of Appeals rejected this claim, finding that:

Although defendant presents different scenarios in which someone else 

was driving the vehicle, the jury apparently credited the testimony of 

Officer Vidaurri, who testified that he saw defendant crawling from the 

driver’s seat, under the air bags, and exit out the passenger side front 

door. That testimony, viewed in a light most favorable to the 

prosecution, permitted an inference that defendant was driving the 

vehicle at the time of the accident. The jury reasonably could have 

concluded that defendant would have no reason to exit the vehicle in 

such a manner unless he was driving. The credibility of Officer 

Vidaurri’s testimony, and the determination of what inferences could 

fairly be drawn from the testimony, was for the trier of fact to resolve. 

This Court will not interfere with the fact-finder’s role of determining 

the weight of the evidence or the credibility of witnesses. The evidence 

was sufficient to permit a reasonable jury to conclude beyond a 

reasonable doubt that defendant was the operator of the vehicle 

involved in the accident.

Mullins, 2013 WL 6481011, at *3 (internal citations omitted). 

“[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). But 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.” Woodby v. INS, 385 U.S. 

276, 282 (1966). “Instead, the relevant question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of fact could 
10

have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 

443 U.S. at 319 (internal citation omitted).

“A federal habeas court may not overturn a state court decision that rejects a 

sufficiency of the evidence claim merely because the federal court disagrees with 

the state court’s resolution of that claim.” See Cavazos v. Smith, 565 U.S. 1, 2 (2011)

(per curiam). Rather, a federal court may grant habeas relief “only if the state court 

decision was ‘objectively unreasonable.’ ” Id. (citing Renico v. Lett, 559 U.S. 766, 

773 (2010)). “Because rational people can sometimes disagree, the inevitable 

consequence of this settled law is that judges will sometimes encounter convictions 

that they believe to be mistaken, but that they must nonetheless uphold.” Id. For a 

federal habeas court reviewing a state court conviction, “the only question under 

Jackson is whether that finding was so insupportable as to fall below the threshold 

of bare rationality.” Coleman v. Johnson, 566 U.S. 650, 656 (2012). A state court’s 

determination that the evidence does not fall below that threshold is entitled to 

“considerable deference under AEDPA.” Id. 

Under Michigan law, “[t]he identity of a defendant as the perpetrator of the 

crimes charged is an element of the offense and must be proved beyond a reasonable 

doubt.” Byrd v. Tessmer, 82 F. App’x. 147, 150 (6th Cir. 2003) (citing People v. 

Turrell, 181 N.W.2d 655, 656 (Mich. App. Ct. 1970)). “Identity of a defendant can 

be inferred through circumstantial evidence.” See Dell v. Straub, 194 F. Supp. 2d 
11

629, 648 (E.D. Mich. 2002) (citing United States v. Kwong, 14 F.3d 189, 193 (2nd 

Cir. 1994)). 

In the present case, there was sufficient circumstantial and direct evidence for 

a rational trier of fact to conclude that Petitioner was the driver of the gray Ford 

Taurus. Officer Vidaurri was present when the accident occurred. He witnessed 

Octavia Larkins exit the passenger side rear door of the vehicle. He also saw another 

female, Carmen Robinson, exit the front passenger door of the vehicle. Officer 

Vidaurri then observed Petitioner crawling from the driver’s seat, underneath the air 

bags, to the front passenger seat, before exiting the vehicle from the front passenger 

seat. Petitioner then re-entered the vehicle in the rear and sat down in the rear 

passenger seat. Although Petitioner told another police officer that Robinson was 

the driver, the jury could rationally conclude that Petitioner was the driver. The jury 

could reach this conclusion because Robinson immediately exited the front 

passenger door right after the accident and Petitioner was seen crawling through the 

car in the above-described manner. It was reasonable for the jury to infer from 

Petitioner’s placement in the vehicle and his actions at the time of the accident that 

he, and not Ms. Robinson, was driving the vehicle. 

Because there was sufficient circumstantial and direct evidence to establish 

Petitioner’s identity as the driver of the gray Ford Taurus, the Michigan Court of 
12

Appeals did not unreasonably apply Jackson in rejecting Petitioner’s sufficiency of 

evidence claim. See Moreland v. Bradshaw, 699 F.3d 908, 919–21 (6th Cir. 2012). 

C. Claims #3 and #4. Ineffective assistance of counsel.

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

withdrawing her motion for the appointment of an accident reconstruction expert, 

Dr. Charles Funk. Although trial counsel initially filed a motion for the appointment 

of this expert, she later withdrew that request. Petitioner claims that Dr. Funk would 

have testified that a review of the driver and passenger airbags, along with the 

vehicle’s black box, probably would have shown that a person of a certain height, 

weight, and gender—all different from those of the Petitioner—was the driver. 

Petitioner contends that trial counsel was ineffective for withdrawing her motion for 

the appointment of Dr. Funk. In his related fourth claim, Petitioner alleges that 

appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness 

on his appeal of right. 

A defendant is required to satisfy a two prong test to establish the denial of 

the effective assistance of counsel. First, a defendant must show that counsel’s 

performance was so deficient that the attorney was not functioning as the “counsel” 

guaranteed by the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668, 

687 (1984). To make this showing, a defendant must overcome a strong 

presumption that counsel’s behavior was within the wide range of reasonable 
13

professional assistance. Id. Stated differently, a defendant must overcome the 

presumption that, under the circumstances, the challenged action might be sound 

trial strategy. Id at 689. 

Second, a defendant must show that such performance prejudiced his or her 

defense. Id at 687. To demonstrate prejudice, a defendant must establish 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 

would have been different.” Wong v. Belmontes, 558 U.S. 15, 27 (2009). (citing 

Strickland, 466 U.S. at 694). The Strickland standard also applies to claims of 

ineffective assistance of appellate counsel. See Whiting v. Burt, 395 F.3d 602, 617 

(6th Cir. 2005) (citing Munson v. Kapture, 384 F.3d 310, 316 (6th Cir. 2004)). 

More importantly, on habeas review, “the question ‘is not whether a federal 

court believes the state court’s determination’ under Strickland ‘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 standard.” 

Harrington, 562 U.S. at 101. Indeed, “because the Strickland standard is a general 
14

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). Pursuant to the 28 U.S.C. § 2254(d)(1) standard, a 

“doubly deferential judicial review” applies to a Strickland claim brought by a 

habeas petitioner. Id. (citation omitted). This means that on habeas review of a state 

court conviction, “a state court must be granted a deference and latitude that are not 

in operation when the case involves review under the Strickland standard itself.”

Harrington, 562 U.S. at 101. Accordingly, “[s]urmounting Strickland’s high bar is 

never an easy task.” Id. at 105 (internal quotation marks omitted) (quoting Padilla 

v. Kentucky, 559 U.S. 356, 371 (2010)).

A habeas petitioner’s claim that trial counsel was ineffective for failing to call 

an expert witness cannot be based on speculation. See Keith v. Mitchell, 455 F.3d 

662, 672 (6th Cir. 2006). In her motion for the appointment of an expert, Petitioner’s 

trial counsel claimed that Dr. Funk would provide this exculpatory testimony for 

Petitioner. Yet counsel apparently did not attach an affidavit or proposed report 

from Dr. Funk to the motion. Petitioner raised his ineffective assistance of trial 

counsel claim on his post-conviction motion for relief from judgment but failed to 

provide an affidavit from Dr. Funk to the state trial or appellate courts concerning 

his proposed testimony. See Dkt. Nos. 21-2, 21-4, 21-5. 
15

Petitioner has also not provided this Court with any affidavit from Dr. Funk 

concerning his proposed testimony and willingness to testify on Petitioner’s behalf. 

Conclusory allegations of ineffective assistance of counsel 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 

trial counsel claim, Petitioner is not entitled to an evidentiary hearing in this Court 

on his ineffective assistance of counsel claim. See Cooey v. Coyle, 289 F. 3d 882, 

893 (6th Cir. 2002) (citing 28 U.S.C. § 2254(e)(2)(A)(ii)). Petitioner had failed to 

attach any offer of proof or affidavit sworn by Dr. Funk, and he has not presented—

either to the Michigan courts or to this Court—any evidence beyond his own 

assertions regarding whether Dr. Funk would have testified and the content of that

testimony. In the absence of such proof, Petitioner is unable to establish that he was 

prejudiced by counsel’s failure to call Dr. Funk as an expert witness to testify at trial, 

so as to support the second prong of an ineffective assistance of counsel claim. 

The Sixth Amendment guarantees a defendant the right to the effective 

assistance of appellate counsel on an appeal of right. See Evitts v. Lucey, 469 U.S. 

387, 396–97 (1985). However, court appointed counsel does not have a 

constitutional duty to raise every nonfrivolous issue demanded by a defendant. 

Jones v. Barnes, 463 U.S. 745, 751 (1983). Petitioner failed to show that his trial 

counsel was ineffective and is thus unable to establish that appellate counsel was 
16

ineffective for failing to raise an ineffective assistance of trial counsel claim on his 

direct appeal. See, e.g., Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th Cir. 2008). 

Consequently, Petitioner is not entitled to habeas relief on his third and fourth 

claims.

D. Claim #5. Exculpatory evidence.

Finally, Petitioner contends that the prosecutor withheld exculpatory 

evidence. To prevail on his claim, a petitioner must show (1) that the state withheld 

exculpatory evidence and (2) that “the evidence [was] material either to guilt or to 

punishment irrespective of good faith or bad faith of the prosecution.” Brady v. 

Maryland, 373 U.S. 83, 87 (1963). Evidence is material only if there is a reasonable 

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

proceeding would have been different. “Reasonable probability” constitutes “a 

probability sufficient to undermine confidence in the outcome.” United States v. 

Bagley, 473 U.S. 667, 683 (1985) (internal quotation marks omitted) (quoting 

Strickland, 466 U.S. at 694). In Strickler v. Greene, the Supreme Court articulated 

three essential elements of a Brady claim: (1) “[t]he evidence at issue must be 

favorable to the accused, either because it is exculpatory, or because it is impeaching; 

[(2)] that evidence must have been suppressed by the State, either willfully or 

inadvertently; and [(3)] prejudice must have ensued.” 527 U.S. 263, 281–82 (1999). 
17

“Prejudice (or materiality) in the Brady context is a difficult test to meet.” Jamison 

v. Collins, 291 F. 3d 380, 388 (6th Cir. 2002) (citations omitted).

“[A habeas petitioner] bears the burden of showing the prosecution 

suppressed exculpatory evidence.” See Bell v. Howes, 703 F.3d 848, 853 (6th Cir. 

2012) (citing United States v. Warshak, 631 F.3d 266, 300 (6th Cir. 2010)). 

Petitioner has not identified any evidence withheld by the prosecutor or how such 

evidence would have proven exculpatory. “[C]onclusory allegations do not provide 

a basis for habeas relief.” Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006)

(internal quotation marks omitted) (quoting Stanford v. Parker, 266 F.3d 442, 460 

(6th Cir. 2001)). “Allegations that are merely conclusory or which are purely 

speculative cannot support a Brady claim.” Burns v. Lafler, 328 F. Supp. 2d 711, 

724 (E.D. Mich. 2004) (citing Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir.

2000)). Petitioner, therefore, is not entitled to relief on his fifth claim.

IV. CONCLUSION

The Court will deny the petition for a writ of habeas corpus [1]. The Court 

will also deny a certificate of appealability. To obtain a certificate of appealability, 

a prisoner must “ma[ke] a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). And to demonstrate this denial, an applicant must “show[]

that reasonable jurists could debate whether (or, for that matter, agree that) the 

petition should have been resolved in a different manner, or that the issues presented 
18

were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 

529 U.S. 473, 483–84 (2000) (internal quotation marks omitted) (quoting Barefoot 

v. Estelle, 463 U.S. 880, 894 & n.4 (1983)). When a district court rejects a habeas 

petitioner’s constitutional claims on the merits, “[a] petitioner must demonstrate that 

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

claims 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.

For the reasons stated in this opinion, the Court will deny petitioner a 

certificate of appealability because reasonable jurists would not find this Court’s 

assessment of petitioner’s claims to be debatable or wrong. 

Petitioner is denied leave to appeal in forma pauperis, as the appeal would be 

frivolous.

V. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of 

habeas corpus is DENIED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that leave to appeal in forma pauperis is 

DENIED.

Dated: August 15, 2018 /s/Gershwin A. Drain 
19

GERSHWIN A. DRAIN 

United States District Judge 

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

August 15, 2018, by electronic and/or ordinary mail.

/s/ Tanya Bankston

Deputy Clerk