UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RAHIM ALFETLAWI, 

 

 Petitioner, 

 Case No. 15-12149 

v. Honorable Linda V. Parker 

 

PAUL KLEE, 

 Respondent. 

________________________________/ 

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF 

HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF 

APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS

 Petitioner Rahim Alfetlawi (“Petitioner”), confined at the Gus Harrison 

Correctional Facility in Adrian, Michigan, filed a pro se petition for a writ of 

habeas corpus pursuant to 28 U.S.C. § 2254. In his application, Petitioner 

challenges his convictions in a Michigan state court for the following: first-degree 

premeditated murder in violation of Michigan Compiled Laws § 750.316(1)(a); 

possession of a firearm during the commission of a felony (felony-firearm) in 

violation of Michigan Compiled Laws § 750.227b; and carrying a firearm with 

unlawful intent in violation of Michigan Compiled Laws § 750.226. The state trial 

court sentenced Petitioner to life imprisonment without the possibility of parole for 

the murder conviction, two years’ imprisonment for the felony-firearm conviction, 
2 

and two to five years’ imprisonment for the other firearm-related conviction. For 

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

I. Background 

 A jury convicted Petitioner of the aforementioned offenses following a trial 

in the Macomb County Circuit Court. 

At Petitioner’s trial, Dianne Fauer testified that she resided at 24915 

Tallman in Warren, between Hoover and Van Dyke off of Ten Mile Road, since 

the 1970’s. (10/12/12 Trial Tr. at 6-8.) Fauer testified that she had a daughter, 

Wendy Wasinski, and a 19-year-old granddaughter, Jessica Mokdad. (Id. at 11; 

10/16/12 Trial Tr. at 126.) Jessica’s father was Mohammed Mokdad. (10/16/12 

Trail Tr. at 124.) In 2000, Wasinski married Petitioner and moved with him first 

to Tennessee and then to Minnesota. (10/12/12 Trial Tr. at 9-11; 10/16/12 Trial Tr. 

at 122-123, 130-131.) 

 In 2008, Jessica began dating a high school classmate named Michael 

Robertson. (10/16/12 Trial Tr. at 6-9, 140-141). Petitioner found out in December 

of that year that Jessica and Michael were having sexual intercourse. (Id. at 43, 

141.) As a result, Petitioner and Wasinski drove Jessica and Robertson 12 hours to 

Michigan so that Jessica and Robertson could be “married” in a mosque “in the 

eyes of their religion.” (Id. at 19, 73, 141.) Jessica and Michael participated in the 
3 

ceremony because they “wanted to be with each other,” and felt forced by 

Petitioner. (Id. at 12, 73.) 

 In 2009 and 2010, Jessica and Michael resided in Coon Rapids in Wasinski 

and Petitioner’s apartment. (Id. at 9-10, 18-19, 142.) Jessica revealed to Michael 

that Petitioner had begun repeatedly sexually assaulting her when she turned 18 

years old. (Id. at 20, 72-73.) The sexual assaults were “[o]ral, vaginal, and anal,” 

(id. at 20), on nights when Michael was not in the apartment. (Id. at 20-21.) 

Michael urged Jessica to go to the police. (Id.) She refused and urged Michael not 

to confront Petitioner directly, fearing that Petitioner would kill Jessica or her 

mother. (Id. at 22-23.) 

 Petitioner’s apartment was a “small, cramped place with a lot of 

[surveillance] cameras.” (Id. at 13-14, 137-138.) Wasinski testified that all the 

cameras were connected to Petitioner’s bedroom, (id. at 138-139), with a voiceactivated audio recording in Jessica’s bedroom. (Id. at 139.) Michael testified that 

he assumed Petitioner had recording devices throughout the apartment because 

Petitioner often seemed to know what Michael and Jessica had been discussing in 

private. (Id. at 14.) 

 Michael testified that Petitioner engaged in verbal and physical altercations 

with Wasinski and physically assaulted Jessica on several occasions. (Id. at 21, 23, 

145-146.) Petitioner would “slap” Jessica across the face with an open hand when 
4 

“he would get angry.” (Id. at 21-22.) Michael tried to intervene, imploring 

Petitioner to “stop.” (Id. at 22.) 

 In July 2010, Jessica left her family and returned to Michigan to live with 

her biological father, Mohammed Mokdad, in Grand Blanc. (Id. at 15, 24, 146-

147.) Michael remained with Petitioner and Wasinski in Coon Rapids. (Id. at 15-

16, 148.) In August 2010, Michael relocated to Michigan and resided with Jessica 

and Jessica’s biological father in Grand Blanc. (Id. at 15-18, 24, 148.) Petitioner 

telephoned Michael several times, stating, “I’m gonna fucking kill you!” (Id. at 25-

26.) Michael testified that he heard similar threats directed at Jessica on her 

speakerphone. (Id. at 26-27.) 

 Before Christmas 2010, Jessica and Michael moved to Fauer’s house on 

Tallman in Warren. (10/12/12 Trial Tr. at 13-14; 10/16/12 Trial Tr. at 15, 24-25, 

30, 154.) Michael worked at a Tim Horton’s and Jessica attended school at 

Macomb County Community College. (10/16/12 Trial Tr. at 31, 84.) Michael 

testified that he and Jessica continued receiving threatening calls from Petitioner 

and that Jessica was afraid of Petitioner. (Id. at 31-33.) 

 In late 2010, Petitioner persuaded Wasinski to install spyware on Jessica’s 

cellular telephone during one of Wasinski’s visits to Michigan. (Id. at 150-155.) 

When she visited her family for Christmas in 2010, Wasinski installed spyware on 

Jessica’s cellular telephone. (Id. at 155-156.) As a result, the spyware listed the 
5 

details of Jessica’s incoming and outgoing telephone calls and Petitioner could 

“read her text messages on this website from anybody.” (Id. at 156.) Petitioner, 

who was living in Minnesota, “wanted to sit [at his computer] all day and night 

monitoring [Jessica’s] situation.” (Id. at 157.) 

 On March 26, 2011, Petitioner and Wasinski came to Michigan at 

Petitioner’s suggestion to visit Wasinski’s ailing grandmother. (Id. at 34-35, 162-

164.) “Everything was calm and normal” and the family had “a typical meet and 

greet” at the house after visiting Wasinski’s grandmother at her nursing home. (Id. 

at 34-35, 165.) Petitioner began pressing Jessica to return to Minnesota. (10/12/12 

Trial Tr. at 17-19; 10/16/12 Trial Tr. at 35, 165-166). Jessica responded: “No. I 

got school and I’m trying to find work, Mike has work, we can’t move back.” 

(10/16/12 Trial Tr. at 35.) Petitioner became more aggressive, started yelling, and 

at one point “smacked” Jessica across the face with an open hand. (10/16/12 Trial 

Tr. at 36.) He screamed that Jessica “better come home” or she was “gonna have a 

bad day.” (Id.) Jessica eventually left Fauer’s house with Petitioner and Wasinski, 

returning with them to Minnesota. (10/12/12 Trial Tr. at 19-21; 10/16/12 Trial Tr. 

at 38, 93.) Jessica informed Wasinksi and later her friend Chuba that Petitioner 

had said: “If you don’t come with me, I’ll kill you.” (10/12/12 Trial Tr. at 19; 

10/16/12 Trial Tr. at 94-95, 170.) 
6 

 Between March 26, 2011, and April 4, 2011, Petitioner “never wanted to let 

[Jessica] out of his sight.” (10-17-12 Trial Tr. at 9-10.) Jessica accompanied 

Wasinski to Wasinski’s job and one day told her mother that she could not “live 

this way” and wanted to “do something with her life.” (Id. at 11.) On April 4, 

2011, Wasinski agreed to help Jessica “take the train back to Michigan.” (10/16/12 

Trial Tr. at 39, 98-103; 10/17/12 Trial Tr. at 11.) Wasinski also told Jessica about 

the spyware on Jessica’s cellular telephone, advising “her [to] get another phone” 

and periodically talk to friends about unimportant things on the old telephone. 

(10/17/12 Trial Tr. at 15.) When Wasinski returned to the apartment, she 

distracted Petitioner, which allowed Jessica to pack her belongings. (Id. at 11-12.) 

Wasinski told Petitioner she needed Jessica’s help at work the next morning, but 

instead “took [Jessica] straight to the train” station. (Id. at 12-14). Later that day, 

Wasinski told Petitioner that Jessica “just took off while [Wasinski] was at work.” 

(Id.) 

 On the train, Jessica struck up a conversation with Robert Marlow, who 

noticed that Jessica was “obviously distraught” as she used her cellular telephone 

for texting and talking. (Id. at 94.) Jessica told Marlow about the “pattern of 

abuse, physical, verbal, and . . . mental, emotional abuse at the hands of her stepfather.” (Id. at 95-96.) Jessica had her clothes in “two garbage bags.” (Id. at 96-

97.) She told Marlow that Petitioner threatened to kill her. (Id. at 98-99, 116-117.) 
7 

According to Marlow, Jessica “truly believed that [Petitioner] was capable and 

willing to kill her.” (Id. at 99, 116-117.) 

 On April 29, 2011, Wasinski was sitting in her vehicle speaking on her 

cellular telephone with Jessica, when Jessica said “I need to tell you that 

[Petitioner] has raped me before.” (Id. at 17.) Jessica indicated to her mother that 

she did not tell her because Jessica was “scared” that Petitioner would kill her. (Id.

at 17.) After this conversation, Wasinski arrived home between 5:00 p.m. and 6:00 

p.m. (Id. at 18.) As Wasinski cooked dinner, Petitioner left the apartment for a 

period of 45 minutes. (Id.). When he returned, his demeanor had radically 

changed. (Id. at 18-19.) He was “very agitated” and “very nervous.” (Id. at 19.) 

Petitioner seemed to be “in a hurry.” (Id.). He told Wasinski that he wanted to help 

Fauer “tomorrow over at your grandma’s apartment to clean it up.” (Id.) Wasinski 

had mentioned this family project a few days earlier but Petitioner had not 

responded. (Id.) Wasinski testified that she was “very tired” and told her husband 

that she did not want to go. (Id.) Wasinski knew Petitioner had placed audio 

recording devices in her vehicle in the past. (Id. at 19-20.) Less than two hours 

after Wasinski returned home, Petitioner left for Michigan. (Id. at 20.) 

 The following day, April 30, 2011, Fauer was at the seniors’ complex where 

her mother had lived and she was removing items from her mother’s apartment. 

(10/12/12 Trial Tr. at 21-23.) Fauer arrived at 1:00 p.m. and various family 
8 

members, including Jessica, assisted her in the move until 3:00 p.m. (Id. at 23-25.) 

At some point, Petitioner appeared at the apartment. (Id. at 24.) Fauer was not 

aware that Petitioner was in Michigan. (Id. at 25.) Fauer heard Petitioner tell 

Jessica that he “wanted to speak with her, maybe get a cup of coffee.” (Id. at 27.) 

He said “he wanted to make things right between them.” (Id.) Jessica then left 

with Petitioner. (Id. at 27-28.) When Fauer left about 30 to 45 minutes later and 

returned home, she saw Jessica’s black Grand Am outside the house. (Id. at 28-31.) 

The house appeared to be empty, however. (Id. at 32.) Fauer entered the house, 

calling Jessica’s name. (Id. at 33.) When she got to Jessica’s bedroom door, Fauer 

saw Jessica “slumped on the floor, her back against the bedroom door.” (Id.) 

Jessica’s hair “was strewn across her eye area” and “she was very still.” (Id.) Fauer 

reached down to touch Jessica’s hand and it felt cold to her. (Id.) Jim, another 

family member who had followed Fauer home, entered the house. (Id.). Jim 

yelled, “Call 9-1-1, she’s bleeding from the mouth!” (Id.) 

 Theresa Kerr testified that she was working as a police dispatcher for the 

Center Line Public Safety Department on April 30, 2011, when Petitioner walked 

into the lobby at approximately 3:00 p.m. and told her “he had killed his stepdaughter.” (10/12/12 Trial Tr. at 95-103.) Jessica died of a gunshot to the side of 

her head, made with a nine-millimeter handgun. (10/12/12 Trial Tr. at 68, 84.) 
9 

Petitioner was arrested and subsequently tried and convicted of the above-listed 

offenses. 

 Petitioner’s convictions were affirmed on appeal. People v. Alfetlawi, No. 

313855, 2014 WL 4263222 (Mich. Ct. App. Aug. 28, 2014). The Michigan 

Supreme Court denied Petitioner leave to appeal. People v. Alfetlawi, 862 N.W.2d 

182 (2015). On June 11, 2015, Petitioner filed the pending habeas petition, 

seeking relief on the following grounds: 

I. The trial court abused its discretion and deprived 

defendant of a fair trial and due process of law, as well as 

his Sixth Amendment right to cross-examination by 

admitting, over objection, testimony regarding (1) 

defendant’s repeated sexual and general physical assaults 

upon the decedent and her mother, (2) repeated threats 

against the physical and emotional well-being of 

decedent and others, (3) the stalking and surveillance 

defendant subjected decedent to, (4) the fear and hatred 

decedent and others had of defendant, and (5) 

defendant’s mental state and obsession with decedent, all 

of which were irrelevant, inadmissible hearsay, 

inadmissible as “prior bad acts” under MRE 404(b) and 

unfair prejudicial. 

II. The testimony of a police officer that defendant failed to 

state that he shot decedent or that it was an accident or 

call EMS, and the prosecutor’s closing argument that 

defendant’s failure to state that he shot the decedent or 

that it was an accident or to call EMS was evidence of 

guilt violated defendant’s Fifth Amendment right against 

self- incrimination and denied him a right to a fair trial. 

III. Michigan law and the Due Process Clause of the 

Michigan and United States Constitutions require 

sufficient evidence to convict a defendant of a criminal 
10 

offense. There was insufficient evidence of premeditation 

required to sustain a conviction for first degree murder, 

depriving defendant of due process of law. 

II. Standard of Review

 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as 

amended, imposes the following standard of review for habeas cases: 

An application for a writ of habeas corpus on behalf of a person in 

custody pursuant to the judgment of a State court shall not be granted 

with respect to any claim that was adjudicated on the merits in State 

court proceedings unless the adjudication of the claim– 

(1) resulted in a decision that was contrary to, or 

involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme 

Court of the United States; or 

(2) resulted in a decision that was based on an 

unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding. 

 

28 U.S.C. § 2254(d). A decision of a state court is “contrary to” clearly 

established federal law if the state court arrives at a conclusion opposite to that 

reached by the Supreme Court on a question of law or if the state court decides a 

case differently than the Supreme Court has on a set of materially 

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An 

“unreasonable application” occurs when “a state court decision unreasonably 

applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 

409. A federal habeas court may not “issue the writ simply because that court 
11 

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

applied clearly established federal law erroneously or incorrectly.” Id. at 410-11. 

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

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

federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “AEDPA thus 

imposes a ‘highly deferential standard for evaluating state-court rulings,’ and 

‘demands that state-court decisions be given the benefit of the doubt.’ ” Renico v. 

Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 

(1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “A state 

court’s determination that a claim lacks merit precludes federal habeas relief so 

long as ‘fairminded jurists could disagree’ on the correctness of the state court’s 

decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. 

Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized “that even 

a strong case for relief does not mean the state court’s contrary conclusion was 

unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). 

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

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

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

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

prior decision” of the Supreme Court. Id. In order to obtain habeas relief in 
12 

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.” Harrington, 562 U.S. at 103. 

III. Discussion

A. Evidentiary Rulings

 Petitioner claims he was denied a fair trial by the admission of testimony 

relating to: (a) his numerous sexual assaults of and threats to the decedent and her 

mother, (b) his stalking of the decedent, (c) decedent’s hatred of Petitioner, and 

(d) Petitioner’s mental state and obsession with the decedent.1

 It is “not the province of a federal habeas court to reexamine state-court 

determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 

(1991). A federal court is limited in federal habeas review to deciding whether a 

 

1Respondent contends that portions of Petitioner’s first claim are procedurally 

defaulted. Procedural default is not a jurisdictional bar to review of a habeas 

petition 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)). “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. In the present 

case, application of a procedural bar would not affect the outcome of this case and 

it is more efficient to proceed directly to the merits. 
13 

state court conviction violates the Constitution, laws, or treaties of the United 

States. Id. Thus, a federal habeas court usually does not question errors in the 

application of state law, especially rulings regarding the admissibility of evidence. 

Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000). 

 Petitioner first contends that the trial court improperly admitted evidence in 

violation of the hearsay rule. The admissibility of evidence under Michigan’s 

hearsay rules is not cognizable in a habeas corpus proceeding. See Byrd v. 

Tessmer, 82 F. App’x 147, 150 (6th Cir. 2003) (citing Estelle, 502 U.S. at 67-68). 

Therefore, the admission of this evidence in violation of Michigan’s rules of 

evidence does not entitle Petitioner to relief. 

 Moreover, the Michigan Court of Appeals reasonably determined that the 

evidence was properly admitted: 

... among the many record citations provided by defendant are 

defendant’s own statements, relayed by various witnesses at trial, in 

which defendant threatened them with violence if they did not agree 

to help him locate and monitor the victim. To the extent that 

defendant challenges the admissibility of his own statements on 

hearsay grounds, it is clear that they were admissible nonhearsay 

under MRE 801(d)(2)(A) (admission of party-opponent offered 

against the party). 

 Regarding various statements made by the victim to others, 

including those in which she disclosed sexual abuse, violence, and 

threats of violence; expressed her fear for and hatred of defendant; 

and explained that defendant was monitoring her cellular telephone, 

the trial court allowed the victim’s statements to be admitted under 

MRE 804(b)(6). MRE 804(b)(6), known as the “forfeiture-by-
14 

wrongdoing rule,” People v. Roscoe, 303 Mich. App. 633, 640; 846 

NW2d 402 (2014), provides that it allows for the admission of an 

unavailable declarant’s hearsay statements when the defendant 

“engaged in or encouraged wrongdoing that was intended to, and did, 

procure the unavailability of the declarant as a witness.” As its plain 

language indicates, MRE 804(b)(6) “incorporate[s] a specific-intent 

requirement.” . . . We therefore conclude that a preponderance of the 

evidence supports a finding that defendant shot and killed the victim 

with the specific intent to cause her unavailability to later testify about 

the alleged sexual abuse once he learned, through the use of his 

surveillance equipment, that she had disclosed the abuse to her 

mother. The victim’s hearsay statements were therefore admissible 

under MRE 804(b)(6). 

 

Alfetlawi, 2014 WL 4263222, at *4. Petitioner fails to show that the Michigan 

Court of Appeals’ determination that this evidence was admissible under state law 

was incorrect. 

 Petitioner’s claim that he was denied a fair trial by the admission of 

irrelevant and highly prejudicial evidence generally cannot form the basis for 

habeas relief. First, the claim involves a state law evidentiary issue. See Estelle, 

supra. Second, as the Sixth Circuit has observed, “the Supreme Court has never 

held (except perhaps within the capital sentencing context) that a state trial court’s 

admission of relevant evidence, no matter how prejudicial, amounted to a 

violation of due process.” Blackmon v. Booker, 696 F.3d 536, 551 (6th Cir. 2012) 

(emphasis in original) (citing Dowling v. United States, 493 U.S. 342, 352-54 

(1990) and Estelle, 502 U.S. at 67-70). 
15 

 Petitioner next claims that the state court violated Michigan Rule of 

Evidence 404(b) by admitting improper character evidence or evidence of his 

prior bad acts against the victim and her mother. Again, this claim is noncognizable on habeas review. See Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 

2007); Estelle, 502 U.S. at 72 (Supreme Court’s habeas powers did not permit 

Court to reverse state court conviction based on its belief that the state trial judge 

erred in ruling that prior injury evidence was admissible as bad acts evidence 

under California law); Dowling, 493 U.S. at 352-53 (1990)(admission at 

defendant’s bank robbery trial of “similar acts” evidence that he had subsequently 

been involved in a house burglary for which he had been acquitted did not violate 

due process). The admission of this “prior bad acts” or “other acts” evidence 

against Petitioner at his state trial does not entitle him to habeas relief, because 

there is no clearly established Supreme Court law holding that a state violates a 

habeas petitioner’s due process rights by admitting propensity evidence in the 

form of “prior bad acts” evidence. See Bugh v. Mitchell, 329 F.3d 496, 512 (6th 

Cir. 2003). Given the lack of Supreme Court holdings on the issue of whether a 

state court violates a habeas petitioner’s due process rights by the admission of 

evidence to establish the petitioner’s propensity to commit criminal acts, the 

Michigan Court of Appeals’ rejection of Petitioner’s claim was not an 
16 

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). 

 An evidentiary ruling may be so egregious that it results in a denial of 

fundamental fairness and violates the Due Process Clause. Bugh, 329 F.3d at 512 

(citing Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001); Seymour v. 

Walker, 224 F.3d 542, 552 (6th Cir. 2000)). However, “courts ‘have defined the 

category of infractions that violate ‘fundamental fairness’ very narrowly.’ ” 

Wright v. Dallman, 999 F.2d 174, 178 (6th Cir. 1993) (quoting Dowling v. United 

States, 493 U.S. 342, 352 (1990)). “Generally, state-court evidentiary rulings 

cannot rise to the level of due process violations unless they ‘offend some 

principle of justice so rooted in the traditions and conscience of our people as to 

be ranked as fundamental.’ ” Seymour, 224 F.3d at 552 (bracket omitted) (quoting 

Montana v. Egelhoff, 518 U.S. 37, 43 (1996)). In Petitioner’s case, the prejudicial 

evidence was relevant and admissible under Michigan law. This Court cannot say 

that under relevant Supreme Court precedent, Petitioner’s due process rights were 

violated by the introduction of this evidence. 

 Petitioner also alleges that he was denied his confrontation rights when the 

trial court admitted the decedent’s prior statements, ruling that the statements were 

admissible under Michigan Rule of Evidence 804(b)(6). The Sixth Amendment’s 

Confrontation Clause bars the admission of out-of-court statements that are 
17 

testimonial in nature unless the witness is unavailable and the defendant has had a 

prior opportunity to cross-examine the witness, regardless of whether such 

statements are deemed reliable by the court. See Crawford v. Washington, 541 

U.S. 36 (2004). Nonetheless, the Confrontation Clause is not implicated, and thus 

need not be considered, when non-testimonial hearsay is at issue. See Davis v. 

Washington, 547 U.S. 813, 823-26 (2006); see also Desai v. Booker, 538 F.3d 

424, 425-26 (6th Cir. 2008). Remarks made to family members or acquaintances, 

business records, or statements made in furtherance of a conspiracy are not 

testimonial. Crawford, 541 U.S. at 51-52, 56. In holding that the Sixth 

Amendment right to confrontation does not apply to non-testimonial statements, 

the Supreme Court stated: 

“The text of the Confrontation Clause reflects this focus on 

testimonial hearsay. It applies to ‘witnesses’ against the accused—in 

other words, those who ‘bear testimony.’ 1 N. Webster, An American 

Dictionary of the English Language (1828). ‘Testimony,’ in turn, is 

typically ‘a solemn declaration or affirmation made for the purpose 

of establishing or proving some fact.’ Ibid. An accuser who makes a 

formal statement to government officers bears testimony in a sense 

that a person who makes a casual remark to an acquaintance does 

not.” 

Davis, 547 U.S. at 823-24 (brackets omitted) (quoting Crawford, 541 U.S. at 51). 

 Jessica made the admitted statements about Petitioner’s physical and sexual 

abuse to her mother (Wasinski), to her husband (Michael Robertson), to a friend 

(Kayla Chuba), and to an acquaintance she met on the train from Minnesota to 
18 

Michigan (Robert Marlow). (10/16/12 Trial Tr. at 10-23, 72-73, 89-95, 159-60, 

170; 10/17/12 Trial Tr. at 95-99, 116-17.) These out-of-court statements do not 

qualify as testimonial statements covered by the Confrontation Clause. See 

Deshai, 538 F.3d at 427; see also Jackson v. Renico, 179 F. App’x 249, 255 (6th 

Cir. 2006). Moreover, because the Confrontation Clause has no applicability to 

these non-testimonial statements, they were admissible even if they lacked an 

indicia of reliability. See Whorton v. Bockting, 549 U.S. 406, 420 (2007). In short, 

the admission of the decedent’s out-of-court statements did not violate Petitioner’s 

right to confrontation. 

 For the above reasons, Petitioner’s claims pertaining to the trial court’s 

evidentiary rulings are without merit. 

B. Self-incrimination 

 Petitioner alleges that his Fifth Amendment right against self-incrimination 

and his right to a fair trial were violated when police officer Kerr testified that 

Petitioner never stated that he accidently shot the decedent or called EMS and 

when the prosecutor stated during closing argument that Petitioner failed to claim 

that he accidently shot the decedent or called EMS. Respondent contends that this 

claim is procedurally defaulted because Petitioner failed to object to the alleged 

error during trial. The Michigan Court of Appeals agreed and reviewed this claim 
19 

for plain error, but also addressed the merits of the claim. Alfetlawi, 2014 WL 

4263222, at *8. 

 In Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009), a panel of the 

Sixth Circuit held that AEDPA deference applies to any underlying plain-error 

analysis of a procedurally defaulted claim. In a subsequent decision, the Sixth 

Circuit held that plain-error review is not equivalent to adjudication on the merits, 

so as to trigger AEDPA deference. See Frazier v. Jenkins, 770 F.3d 485, 496 n. 5 

(6th Cir. 2014). The Sixth Circuit subsequently recognized that “the approaches 

of Fleming and Frazier are in direct conflict.” Trimble v. Bobby, 804 F.3d 767, 

777 (6th Cir. 2015). When confronted by conflicting holdings of the Sixth 

Circuit, this Court must follow the earlier panel’s holding until it is overruled by 

the United States Supreme Court or by the Sixth Circuit sitting en banc. See

Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001). This Court 

believes that the AEDPA’s deferential standard of review applies to these claims, 

even though they were reviewed for plain error. 

 The Supreme Court has held that prosecutors may use a defendant’s prearrest silence as substantive evidence of his guilt provided the defendant did not 

expressly invoke his right to remain silent. Salinas v. Texas, 133 S. Ct. 2174, 

2179, 2184 (2013); see also Abby v. Howe, 742 F.3d 221, 228 (6th Cir. 2014). 

Kerr testified that Petitioner entered the police station at approximately 3:00 p.m. 
20 

on April 30, 2011, stating that he had “killed his step-daughter.” (10/12/12 Trial 

Tr. at 99-100.) Kerr further testified that Petitioner then provided his Minnesota 

driver’s license and a note saying he was a victim of torture and was under 

psychiatric care. (Id. at 100-101.) 

 The Michigan Court of Appeals reasonably found that Petitioner was not yet 

arrested or Mirandized for Jessica’s murder “because he was not under arrest and 

had not been read his Miranda rights when he made the voluntary statements to 

the dispatcher, nor could his silence otherwise be attributable to the invocation of 

his Fifth Amendment rights.” Alfetlawi, 2014 WL 4263222, at *8. When viewed 

in context, the prosecutor’s comments referred to Petitioner’s “silence” before he 

was arrested or invoked his right to remain silent and were thus permissible. 

Therefore, Petitioner is not entitled to relief on his second claim. 

C. Sufficiency of the Evidence

 Petitioner alleges that there was insufficient evidence of premeditation to 

sustain his first-degree murder conviction. 

 It is beyond question that “the 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 a sufficiency of the 

evidence claim is “whether the record evidence could reasonably support a finding 
21 

of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 

(1979). The court does not “ask itself whether it believes that the evidence at the 

trial established guilt beyond a reasonable doubt.” Id. at 318-19 (emphasis in 

original). “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. 

(emphasis in the original). 

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

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

the state court’s resolution of that claim. A federal court may grant habeas relief 

only if the state court decision was an objectively unreasonable application of the 

Jackson standard. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). “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 

the sufficiency of evidence for 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, 132 S. Ct. 2060, 2065 (2012). 

 On habeas review, a federal court does not re-weigh the evidence or reassess the credibility of the witnesses whose demeanor was observed at trial.
22 

Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder to weigh the probative value of the evidence and resolve any conflicts in 

testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). A habeas court 

therefore must defer to the fact finder for its assessment of the credibility of 

witnesses. Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). 

 To convict a defendant of first-degree murder under Michigan law, the state 

must establish that a defendant’s intentional killing of another was deliberate and 

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

Schollaert, 486 N.W.2d 312, 318 (1992)). The elements of premeditation and 

deliberation may be inferred from the circumstances surrounding the killing. See 

Johnson v. Hofbauer, 159 F. Supp. 2d 582, 596 (E.D. Mich. 2001) (citing People 

v. Anderson, 531 N.W.2d 780, 786 (Mich. Ct. App. 1995)); see also DeLisle v. 

Rivers, 161 F.3d 370, 389 (6th Cir. 1998). The Sixth Circuit, citing Michigan law, 

has provided a non-exhaustive list of factors relevant to assessing premeditation: 

(1) the prior relationship of the parties; (2) the defendant’s actions before the 

killing; (3) the circumstances of the killing itself; and (4) the defendant’s conduct 

after the homicide. Cyars v. Hofbauer, 383 F.3d 485, 491 (6th Cir. 2004) (citing 

Anderson, 531 N.W.2d at 786). Premeditation and deliberation may be inferred 

also from the type of weapon used and the location of the wounds inflicted. See 

People v. Berry, 497 N.W.2d 202, 204 (Mich. Ct. App. 1993). Use of a lethal 
23 

weapon will support an inference of an intent to kill. Johnson, 159 F. Supp. 2d at 

596 (citing People v. Turner, 233 N.W.2d 617, 619 (Mich. Ct. App. 1975)). 

 The Michigan Court of Appeals rejected Petitioner’s sufficiency of the 

evidence claim, providing a lengthy recitation of the circumstances supporting the 

jury’s verdict. See Alfetlawi, 2014 WL 4263222, *2-3. The Michigan Court of 

Appeals found “ample evidence from which a reasonable jury could find, beyond 

a reasonable doubt, that defendant intentionally killed the victim and that the 

killing was premeditated and deliberate.” Id. at *3. This was not an objectively 

unreasonable application of the Jackson standard. There was sufficient evidence 

of premeditation and deliberation to support Petitioner’s first-degree murder 

conviction, including Petitioner’s tumultuous relationship with the victim, 

Petitioner’s previous threats to kill her, his use of a gun to shoot her in the head, 

and the fact that he did not seek medical help despite claiming that the shooting 

was accidental. As such, reversal is unwarranted. 

IV. Conclusion 

 For the reasons set forth above, the Court finds no merit to the grounds 

Petitioner raises in support of his request for habeas relief. The Court therefore is 

denying the petition for a writ of habeas corpus. The Court is denying Petitioner a 

certificate of appealability. 
24 

 In order to obtain a certificate of appealability, a prisoner must make a 

substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). 

To demonstrate this denial, the applicant is required to show that reasonable 

jurists could debate whether, or agree that, the petition should have been resolved 

in a different manner, or that the issues presented were adequate to deserve 

encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 

(2000). When a district court rejects a habeas petitioner’s constitutional claims on 

the merits, the petitioner must demonstrate that reasonable jurists would find the 

district court’s assessment of the constitutional claims to be debatable or wrong. 

Id. at 484. “The district court must issue or deny a certificate of appealability 

when it enters a final order adverse to the applicant.” Rules Governing § 2254 

Cases, Rule 11(a), 28 U.S.C. foll. § 2254. 

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

constitutional right. His claims concerning the admissibility of evidence are not 

cognizable on habeas review and the admission of the evidence did not deny 

Petitioner a fundamentally fair trial. Petitioner’s confrontation clause claim fails 

because the statements at issue were not testimonial. Finally, there was sufficient 

evidence to support Petitioner’s first-degree murder conviction. 

 The Court also is denying Petitioner leave to appeal in forma pauperis

because the appeal would not be taken in good faith. 28 U.S.C. § 1915(a)(3).
25 

Accordingly, 

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 and leave 

to appeal in forma pauperis are DENIED.

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: November 1, 2017 

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

record and/or pro se parties on this date, November 1, 2017, by electronic and/or 

U.S. First Class mail. 

 s/ R. Loury 

 Case Manager