UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MARLO DARIUS BROWN, 

 Petitioner, 

v. Civil Case No. 15-12346 

JACK KOWALSKI1

, Honorable Linda V. Parker 

 Respondent. 

__________________________________/ 

OPINION AND ORDER DENYING THE HABEAS CORPUS 

PETITION (ECF NO. 1), DECLINING TO ISSUE A 

CERTIFICATE OF APPEALABILITY, AND 

GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS 

I. INTRODUCTION 

 This matter has come before the Court on Petitioner Marlo Darius Brown’s 

pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254. Petitioner 

challenges his state convictions for second-degree home invasion, Mich. Comp. 

Laws § 750.110a(3), attempted first-degree home invasion, Mich. Comp. Laws § 

750.92 and § 750.110a(2), receiving or concealing stolen property valued at $200 

or more but less than $1,000, Mich. Comp. Laws § 750.535(3)(b), and third-degree 

fleeing and eluding a police officer, Mich. Comp. Laws § 257.602a(3). Petitioner 

alleges as grounds for relief that (1) his right of confrontation was violated when 

 

1

 Jack Kowalski has been substituted for Joe Barrett because Petitioner has been 

moved to Newberry Correctional Facility 
2 

certain police officers failed to testify at his trial, (2) trial counsel was ineffective 

for failing to investigate all relevant witnesses, (3) trial counsel was ineffective for 

failing to investigate and interview officers Heather Kolke and Jesse Dunlap, (4) 

the search of his vehicle and person violated his constitutional right not to be 

subjected to unreasonable searches and seizures, and (5) the Michigan Court of 

Appeals misapplied the abandonment doctrine when analyzing his Fourth 

Amendment claim. 

 Respondent Joe Barrett argues in an answer to the petition that Petitioner 

procedurally defaulted his first claim and a portion of his claims about trial 

counsel. Respondent also asserts that the state courts’ rejection of Petitioner’s 

claims did not result in decisions that were contrary to federal law, unreasonable 

applications of federal law, or unreasonable determinations of the facts. The 

Court agrees that habeas relief is not warranted on any of Petitioner’s claims. 

Accordingly, the Court is denying Petitioner habeas corpus relief. 

II. BACKGROUND

 The Michigan Court of Appeals accurately summarized the facts leading to 

Petitioner’s convictions as follows: 

Defendant’s convictions arose from two separate incidents, 

both of which occurred on January 18, 2011, in Canton, Michigan. In 

the first incident, someone broke into the home of Dennis Matthews 

and stole several items, including a new television still in its box. In 

the second incident, a person broke the glass on the front door of the 

home of Edward and Veronica Fair, but then ran off. The Fairs, who 
3 

were home at the time, called the police, who responded within three 

to four minutes. 

 After responding to the reported break-in at the Fairs’ home, the 

police observed defendant walking in the area. When an officer 

approached defendant to determine if he had witnessed anything 

associated with that incident, defendant fled on foot. Defendant 

eventually entered a vehicle and drove off. A police pursuit ended 

when defendant lost control of his vehicle and crashed into a tree. 

Defendant fled from his vehicle on foot and was eventually 

apprehended and arrested. After defendant was in custody, the police 

removed his shoes to compare the shoe treads to prints that had been 

left in the snow at the scenes of both incidents. The police also 

discovered, in the backseat of defendant’s vehicle, a new television, 

which was still in its box and which matched the type taken from 

Matthews’s home. 

People v. Brown, No. 304407, 2014 WL 2619395, at *1 (Mich. Ct. App. June 12, 

2014) (unpublished). 

 On April 28, 2011, the jury found Petitioner guilty, as charged, of seconddegree home invasion, attempted home invasion in the first degree, receiving and 

concealing stolen property valued at $200 or more, but less than $1,000, and thirddegree fleeing and eluding the police. On May 13, 2011, the trial court sentenced 

Petitioner to concurrent terms of nine to sixteen years in prison for the seconddegree home invasion, one to five years in prison for the attempted first-degree 

home invasion and for fleeing-and-eluding the police, and two years on probation 

for receiving or concealing stolen property. 

 Petitioner moved for a new trial, arguing that: (1) the search of his vehicle 

and person constituted an unreasonable search and seizure, and trial counsel was 
4 

ineffective for failing to seek suppression of the proceeds of the search; and (2) 

trial counsel was ineffective for failing to challenge testimony that officers were 

able to match the serial number of the television seized from Petitioner’s car to a 

receipt provided by the alleged victim. The trial court held oral arguments on the 

motion, but declined to grant an evidentiary hearing. The court denied Petitioner’s 

motion on grounds that the police did not act inappropriately and that a motion to 

suppress the fruits of the search and seizure would have been frivolous. See

3/30/12 Mot. Hr’g; see also People v. Brown, No. 11-1104, Order Denying Mot. 

(Wayne Cty. Cir. Ct. Mar. 30, 2012). 

 Petitioner raised the same two issues in an appeal as of right. He also moved 

to remand his case to the trial court for an evidentiary hearing on his claim about 

trial counsel. The Michigan Court of Appeals granted Petitioner’s motion to 

remand and ordered the trial court to conduct an evidentiary hearing on Petitioner’s 

claim about trial counsel. On remand, the trial court held an evidentiary hearing at 

which Petitioner’s trial attorney testified. See 11/30/12 Ginther Hr’g Tr. at 4-38.1

 

The trial court later ruled that trial counsel’s representation did not fall below an 

objective standard of reasonableness and that the result of the trial would not have 

 

1

 “In Michigan, a Ginther hearing is an evidentiary hearing regarding a claim of 

ineffective assistance of counsel. See People v. Ginther, 390 Mich. 436, 212 

N.W.2d 922, 924 (1973).” Byrd v. Trombley, 352 F. App’x 6, 10 n.2 (6th Cir. 

2009). 
5 

been different were it not for counsel’s allegedly poor performance. See People v. 

Brown, No. 11-001104-01, Order Denying Mot. for New Trial (Wayne Cty. Cir. 

Ct. Dec. 28, 2012). 

 Following the remand, the Michigan Court of Appeals affirmed Petitioner’s 

convictions in an unpublished per curiam opinion. See Brown, 2014 WL 

2619395.2

 Petitioner appealed to the Michigan Supreme Court, but the State 

Supreme Court denied leave to appeal on October 28, 2014, because it was not 

persuaded to review the issues. See People v. Brown, 497 Mich. 890, 854 N.W.2d 

887 (2014). 

 On January 5, 2015, Petitioner filed a motion for relief from judgment in 

which he raised several claims about his right of confrontation, trial and appellate 

counsel, the trial court’s admission of certain evidence at trial, the prosecutor’s 

conduct, the jury, and the prosecution’s findings of fact. The trial court denied the 

motion on grounds that trial counsel was not ineffective, that Petitioner failed to 

make meritorious arguments, and that Petitioner failed to demonstrate actual 

prejudice warranting reversal of his convictions. See People v. Brown, No. 11-

001104-01-FH, Opinion (Wayne Cty. Cir. Ct. April 3, 2015). 

 

2

 The Court of Appeals also remanded the case to the trial court so that the trial 

court could correct the judgment of sentence, which differed from the sentence 

announced at Petitioner’s sentencing and in his appellate brief. 
6 

 Petitioner apparently failed to appeal the trial court’s decision. He did file 

an application for a delayed appeal from his judgment of sentence, but the 

Michigan Court of Appeals dismissed the application as untimely. See People v. 

Brown, No. 326965 (Mich. Ct. App. Apr. 21, 2015). Petitioner did not appeal the 

Court of Appeals’ decision to the Michigan Supreme Court. (See ECF No. 8-12.) 

 On June 26, 2015, Petitioner filed this habeas corpus petition. Respondent 

maintains that Petitioner procedurally defaulted some of his claims. To prevail on 

procedurally defaulted claims, a petitioner must establish “cause and prejudice for 

the defaults” and “also show that the claims are meritorious.” Babick v. Berghuis, 

620 F.3d 571, 576 (6th Cir. 2010). The Court finds it more efficient to go directly 

to the merits of Petitioner’s claims than to analyze whether the claims are 

procedurally defaulted and whether Petitioner has shown “cause” for the defaults 

and actual prejudice from the claimed errors. Accordingly, the Court excuses the 

alleged procedural defaults and “cut[s] to the merits here,” as “the cause-andprejudice analysis adds nothing but complexity to the case.” Id. 

III. STANDARD OF REVIEW 

 “The statutory authority of federal courts to issue habeas corpus relief for 

persons in state custody is provided by 28 U.S.C. § 2254, as amended by the 

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. 

Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a 
7 

state prisoner’s application for the writ of habeas corpus unless the state court’s 

adjudication of the prisoner’s claims on the merits 

(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] 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. Rather, that application 

must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). 

“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court 

rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997), and ‘demands that statecourt decisions be given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 

19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). 

 “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.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 

541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, 

a state prisoner must show that the state court’s ruling on his or her claim “was so 
8 

lacking in justification that there was an error well understood and comprehended 

in existing law beyond any possibility for fairminded disagreement.” Id. at 103. 

 Furthermore, a state court’s determination of a factual issue is presumed to 

be correct unless the petitioner rebuts the presumption of correctness with clear 

and convincing evidence. See 28 U.S.C. § 2254(e)(1); Holland v. Rivard, 800 F.3d 

224, 242 (6th Cir. 2015), cert. denied, 136 S. Ct. 1384 (2016). In addition, “review 

under § 2254(d)(1) is limited to the record that was before the state court that 

adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 

(2011). 

IV. ANALYSIS

 A. Claim One: Violation of the Confrontation Clause

 Petitioner alleges that his right to confront the witnesses against him was 

violated when two of the police officers who initially responded to the home 

invasions (Heather Kolke and Jesse Dunlap) failed to testify at his trial. Petitioner 

asserts that there was no basis for admitting the seized evidence absent the officers’ 

testimony. 

 Petitioner first raised this claim in his motion for relief from judgment. The 

state trial court rejected the claim because Petitioner had not shown that he would 

have had a reasonably likely chance of acquittal had all the officers involved in the 

investigation and apprehension of him testified at trial. 
9 

 The Sixth Amendment to the United States Constitution guarantees 

defendants in criminal cases “the right . . . to be confronted with the witnesses 

against him.” U.S. CONST. amend. VI. The Confrontation Clause, however, 

applies only to testimonial statements. United States v. Damra, 621 F.3d 474, 492 

n.4 (6th Cir. 2010); United States v. Reynolds, 684 F. App’x 510, 514 (6th Cir. 

2017). 

It applies to “witnesses” against the accused—in other words, those 

who “bear testimony.” 2 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. 

Crawford v. Washington, 541 U.S. 36, 51 (2004). 

 At issue here is the failure of Officers Heather Kolke and Jesse Dunlap to 

testify at Petitioner’s trial. Officer Kolke responded to a police dispatch about 

glass breaking at Mr. and Mrs. Fair’s residence, and Officer Dunlap responded to 

the home invasion at Mr. Matthews’ residence. However, no out-of-court 

statements by Kolke or Dunlap were introduced at Petitioner’s trial. Therefore, 

Petitioner’s reliance on the Confrontation Clause is misplaced, and habeas relief is 

not warranted on his claim. 

 To the extent Petitioner is arguing that his Sixth Amendment right to 

compulsory process was violated, that claim also lacks merit. “[T]he Sixth 

Amendment does not by its terms grant to a criminal defendant the right to secure 
10 

the attendance and testimony of any and all witnesses: it guarantees him 

‘compulsory process for obtaining witnesses in his favor.’ U.S. Const., Amdt. 6.” 

United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (emphasis omitted). 

 Petitioner contends that Officers Kolke and Dunlap would have been 

favorable to his defense because they could have explained why the police seized 

the television in his car before Mr. Matthews reported the home invasion at his 

residence and the theft of his television. However, Petitioner did not request 

assistance from the prosecutor in producing Kolke and Dunlap, and he did not 

object when the prosecuting attorney mentioned that some officers would be 

unavailable. (4/27/11 Trial Tr. at 6.) Petitioner waived or forfeited any right to 

have Kolke and Dunlap testify at his trial by proceeding with the trial in the 

witnesses’ absence. See United States v. Theresius Filippi, 918 F.2d 244, 246 (1st 

Cir. 1990) (concluding that the defendant “waived his constitutional right [to 

compulsory process] when he decided to proceed at trial without his witness”); 

Minetos v. Scully, 625 F. Supp. 815, 818 (S.D.N.Y. 1986) (stating that “[a] 

defendant is deemed to have waived his right to compulsory process where his 

counsel fails to move for such process.”). Habeas relief is not warranted on claim 

one. 

B. Claims Two and Three: Ineffective Assistance of Trial Counsel
11 

 Petitioner argues in claims two and three and elsewhere in his petition that 

his trial attorney was ineffective. Petitioner asserts that his attorney should have 

(1) filed a motion to suppress evidence seized from him and his vehicle and (2) 

interviewed all relevant witnesses, including officers Heather Kolke and Jesse 

Dunlap. The Michigan Court of Appeals concluded on direct review that trial 

counsel was not ineffective. 

 1. Legal Framework

 The “clearly established Federal law” for claims of ineffective assistance of 

counsel is Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a 

defendant must show “that counsel’s performance was deficient” and “that the 

deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687 

(internal citation omitted). 

 The “deficient performance” prong of this test requires showing “that 

counsel’s representation fell below an objective standard of reasonableness.” Id. at 

688. A defendant must demonstrate “that counsel made errors so serious that 

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

Amendment.” Id. at 687. 

 The “prejudice” prong “requires showing that counsel’s errors were so 

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 

Id. A defendant must demonstrate “a reasonable probability that, but for counsel’s 
12 

unprofessional errors, the result of the proceeding would have been different.” Id. 

at 694. 

 2. Failure to File a Motion to Suppress Evidence

 Petitioner contends that trial counsel was ineffective for failing to move to 

suppress the proceeds of the officers’ search and seizure. Petitioner maintains that 

there was no probable cause to arrest or even stop him and, therefore, the 

subsequent searches and seizures of him and his vehicle were unlawful. 

 The Michigan Court of Appeals determined on review of Petitioner’s claim 

that a motion to suppress evidence seized from Petitioner or his vehicle would have 

been futile and that counsel was not ineffective for failing to make a futile motion. 

To prevail on his claim here, Petitioner must show prove (1) that his Fourth 

Amendment claim is meritorious and (2) there is a reasonable probability that the 

verdict would have been different absent the excludable evidence. Kimmelman v. 

Morrison, 477 U.S. 365, 375 (1986). In light of this standard, the Court proceeds 

to analyze Petitioner’s Fourth Amendment claim to determine whether trial 

counsel was ineffective for failing to file a motion to suppress evidence under the 

Fourth Amendment. 

 a. The Initial Stop and Pursuit

 Petitioner contends that the police lacked authority to stop him. It is true 

that “the Fourth Amendment was meant to prevent wholesale intrusions upon the 
13 

personal security of our citizenry, whether these intrusions be termed ‘arrests’ or 

‘investigatory detentions.’” Davis v. Mississippi, 394 U.S. 721, 726–27 (1969). 

But 

law enforcement officers do not violate the Fourth Amendment by 

merely approaching an individual on the street or in another public 

place, by asking him if he is willing to answer some questions, by 

putting questions to him if the person is willing to listen, or by 

offering in evidence in a criminal prosecution his voluntary answers to 

such questions. 

Florida v. Royer, 460 U.S. 491, 497 (1983). And even though “[t]he person 

approached . . . need not answer any question put to him” and “may not be 

detained even momentarily without reasonable, objective grounds for doing so,” 

“certain seizures are justifiable under the Fourth Amendment if there is articulable 

suspicion that a person has committed or is about to commit a crime.” Id. at 497-

98. “[I]n justifying the particular intrusion the police officer must be able to point 

to specific and articulable facts which, taken together with rational inferences from 

those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21 

(1968). 

 “[O]fficers are not required to ignore the relevant characteristics of a 

location in determining whether the circumstances are sufficiently suspicious to 

warrant further investigation.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). 

Moreover, unprovoked flight upon noticing the police and evasive behavior are 

pertinent factors in determining reasonable suspicion. Id. “Headlong flight—
14 

wherever it occurs—is the consummate act of evasion: It is not necessarily 

indicative of wrongdoing, but it is certainly suggestive of such.” Id. 

 Police Officer Daniel Woodward testified at trial that he went to Mr. and 

Mrs. Fair’s neighborhood following a police dispatch about glass breaking at a 

residence. He saw Petitioner walking on the sidewalk about a block away from the 

Fairs’ home. He rolled down the window of his fully marked police car and 

informed Petitioner that he wanted to talk to him. Petitioner then ran away from 

him. 

 Officer Woodward admitted at trial that Petitioner was not doing anything 

suspicious at the time and that he had no description of the perpetrator of the crime 

at the Fairs’ home. However, Petitioner was the only person in the area, and 

Woodward’s job was to ask questions and locate witnesses and suspects. He was 

suspicious of Petitioner because of the nature of the Fairs’ call to the police, the 

timing of their call, and Petitioner’s location. Additionally, Petitioner ran from 

him, and Officer Woodward testified that most people did not run from him when 

he approached them to ask questions. (4/27/11Trial Tr. at 91-94, 101-08, 114-15.) 

 Officer Woodward had specific and articulable facts to justify the stop and 

pursuit of Petitioner. Thus, Petitioner’s contention that the police had no authority 

to stop him lacks merit. 
15 

 b. The Subsequent Arrest

 The next question is whether the police had probable cause to arrest 

Petitioner without a warrant. Absent a warrant, an arrest is constitutionally valid 

if it is supported by probable cause. Beck v. Ohio, 379 U.S. 89, 91 (1964). 

Probable cause exists if at the moment the arrest is made, “the facts and 

circumstances within [the officers’] knowledge and of which they had reasonably 

trustworthy information were sufficient to warrant a prudent man in believing that 

the petitioner had committed or was committing an offense.” Id. 

 Officer Woodward testified that, after Petitioner ran away from him, he 

alerted Officer Kolke3

 that Petitioner might be headed in her direction. Officer 

Kolke, in turn, informed Officer Jim Marinelli that a car was departing Jerry Drive 

and turning onto Morton Taylor Road. (4/27/11 Trial Tr. at 95.) Officer Marinelli 

observed the car go through the intersection of Jerry Drive and Morton Taylor 

Road without stopping at the stop sign. He activated his lights and siren and 

pursued the car. The driver of the suspicious car accelerated, drove through 

another stop sign, exceeded the speed limit, and ultimately crashed into a tree. 

Petitioner then jumped out of the car and ran between some houses. Marinelli 

pursued Petitioner and detained him. (Id. at 117-22, 125-28.) 

 

3 The officer’s name is spelled “Kopy” in the transcript of trial, but it appears 

from the general context of the testimony that Officer Woodward was referring to 

Officer Kolke. 
16 

 The police had probable cause to arrest Petitioner without a warrant because 

he fled from the police following an accident. This was a violation of Mich. 

Comp. Laws § 257.602a(3), fleeing and eluding a police officer resulting in a 

collision or accident. Thus, Petitioner’s challenge to his arrest lacks merit. 

 c. The Searches and Seizures

 The Fourth Amendment ordinarily requires police officers to obtain a 

warrant before conducting a search. Maryland v. Dyson, 527 U.S. 465, 466 

(1999). The question here is whether the searches of Petitioner and his vehicle and 

the seizure of items from him and his vehicle were lawful absent a warrant. 

 i. The Seizure of Petitioner’s Shoes

 Petitioner contends that the officers’ search of him and seizure of his shoes 

violated his constitutional right against unreasonable searches and seizures. The 

shoes were forcibly removed from Petitioner following his arrest. (4/27/11 Trial 

Tr. at 96-97, 128-29.) 

 Although the police did not have a warrant to take Petitioner’s shoes, 

“[a]mong the exceptions to the warrant requirement is a search incident to a lawful 

arrest.” Arizona v. Gant, 556 U.S. 332, 338 (2009). “[A] police officer who 

makes a lawful arrest may conduct a warrantless search of the arrestee’s person 

and the area ‘within his immediate control.’” Davis v. United States, 564 U.S. 229, 

232 (2011) (quoting Chimel v. California, 395 U.S. 752, 763 (1969); accord
17 

Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016) (stating that “[t]he 

search-incident-to-arrest doctrine has an ancient pedigree” and that “[w]ell before 

the Nation’s founding, it was recognized that officers carrying out a lawful arrest 

had the authority to make a warrantless search of the arrestee’s person”); Illinois v. 

Lafayette, 462 U.S. 640, 644 (1983) (noting from previous Supreme Court 

decisions that, “immediately upon arrest an officer may lawfully search the person 

of an arrestee”). 

 Because Petitioner was lawfully arrested, the police could search him. It is 

questionable, however, whether the police were justified in forcibly removing his 

shoes from him at the time. See Lafayette, 462 U.S. at 645 (stating that, “the 

interests supporting a search incident to arrest would hardly justify disrobing an 

arrestee on the street”). 

 But even if the police acted improperly in forcibly taking Petitioner’s shoes 

from him while he was confined in the squad car, they could have confiscated his 

shoes and clothes shortly afterward when they booked him at the police station. 

See id. at 646 (stating that, “[a]t the stationhouse, it is entirely proper for police to 

remove and list or inventory property found on the person or in the possession of 

an arrested person who is to be jailed”). Thus, the shoes with their distinctive 

tread marks likely would have been discovered and lawfully seized at the police 

station. “The inevitable discovery doctrine . . . allows unlawfully obtained 
18 

evidence to be admitted at trial if the government can prove by a preponderance 

that the evidence inevitably would have been acquired through lawful means.” 

United States v. Kennedy, 61 F.3d 494, 497 (6th Cir. 1995) (citing Nix v. Williams, 

467 U.S. 431, 444 (1984)). 

 Furthermore, “[t]he exigent circumstances exception allows a warrantless 

search when an emergency leaves police insufficient time to seek a warrant.” 

Birchfield, 136 S. Ct. at 2173 (citing Michigan v. Tyler, 436 U.S. 499, 509 (1978)). 

The police removed Petitioner’s shoes immediately after his arrest because they 

wanted to compare the distinctive tread on Petitioner’s shoes to the footprints in 

the snow where Petitioner had run from Officer Woodward. (4/27/11 Trial Tr. at 

96-97, 99-101.) It was reasonable for the police to believe that the footprints in the 

snow would be destroyed if they waited for a judicial officer to issue a warrant to 

remove Petitioner’s shoes. See 11/30/12 Ginther Hr’g Tr. at 24-25 (trial counsel’s 

testimony at the post-conviction hearing that, because snow melts, there were 

exigent circumstances justifying the confiscation of Petitioner’s footwear without 

first acquiring a warrant). The possibility that the footprint evidence would be 

destroyed while awaiting a warrant justified the warrantless seizure of Petitioner’s 

shoes. United States v. Tyree, 292 F. App’x 207, 212 (3d Cir. 2008) (citing United 

States v. Coles, 437 F.3d 361, 366 (3d Cir. 2006)). 
19 

ii. The Search of Petitioner’s Car and Seizure of the 

Box containing the Television

 Petitioner contends that the search of his vehicle was unconstitutional 

because he was in custody when his car was searched. Petitioner relies on the 

Supreme Court’s decision in Gant where the Supreme Court stated that the 

[p]olice may search a vehicle incident to a recent occupant’s arrest 

only if the arrestee is within reaching distance of the passenger 

compartment at the time of the search or it is reasonable to believe the 

vehicle contains evidence of the offense of arrest. When these 

justifications are absent, a search of an arrestee’s vehicle will be 

unreasonable unless police obtain a warrant or show that another 

exception to the warrant requirement applies. 

Gant, 556 U.S. at 351. 

 Petitioner had been arrested and placed in a squad car before an officer 

noticed the box in Petitioner’s car. (4/27/11 Trial Tr. at 122-23, 129.) Petitioner 

had no access to his car at the time, and the box containing the television was not 

evidence of the charged offense (fleeing and eluding the police). Therefore, under 

Gant, the police could not lawfully search Petitioner’s car incident to Petitioner’s 

arrest. 

 Nevertheless inventory searches of automobiles pursuant to standard police 

procedures are reasonable under the Fourth Amendment, South Dakota v. 

Opperman, 428 U.S. 364, 372 (1976), and are “a well-defined exception to the 

warrant requirement.” Colorado v. Bertine, 479 U.S. 367, 371 (1987) (citing 

Lafayette, 462 U.S. at 643, and Opperman, 428 U.S. 367-76). In other words, 
20 

“[t]he policies behind the warrant requirement are not implicated in an inventory 

search, Opperman, 428 U.S. at 370, n.5, nor is the related concept of probable 

cause.” Id. Police officers may even “open closed containers while conducting a 

routine inventory search of an impounded vehicle.” Id. at 376 (Blackmun, J., 

concurring). 

 Moreover, the inevitable discovery doctrine “applies where the facts indicate 

that the officers inevitably would have discovered and seized the tainted evidence 

by following ‘routine procedures.’” United States v. Garcia, 496 F.3d 495, 506 

(6th Cir. 2007) (quoting United States v. Vite-Espinoza, 342 F.3d 462, 466 (6th 

Cir. 2003)). “Proof that contraband would have been detected in ‘an inventory 

search that would inevitably follow seizure of a car’ is sufficient to invoke the 

inevitable discovery exception to the exclusionary rule.” United States v. Kimes, 

246 F.3d 800, 804 (6th Cir. 2001) (citing Kennedy, 61 F.3d at 498). 

 Following a police chase, Petitioner crashed into a tree and fled from the 

police. He was arrested for a valid reason (fleeing and eluding the police), and he 

was suspected of being involved in the incident at the Fairs’ residence. Officer 

Kolke noticed the box with the television in the backseat of Petitioner’s car and 

then transported the car from the crash site to the police department where it likely 

would have been subjected to an inventory search without a warrant. There is also 

a substantial possibility that Officer Kolke eventually would have discovered the 
21 

link between the television and the home invasion at Mr. Matthews’ home, because 

she became aware of the home invasion at Mr. Matthew’s home while she was 

writing her report about the attempted home invasion at the Fairs’ resident. (See, 

ECF No. 1-1 at Pg ID 79.) Therefore, defense counsel had no basis for challenging 

the search of Petitioner’s car and the comparison of the television in the car with 

Mr. Matthews’ sales receipt. The search and seizure were proper under exceptions 

to the Fourth Amendment for inventory searches and inevitable discoveries. 

 The Court concludes for the reasons given above that Petitioner’s Fourth 

Amendment claim lacks merit. The police had articulable reasons to stop and 

pursue Petitioner. Soon afterward, they had probable cause to arrest him, and the 

subsequent searches and seizures were proper. Therefore, a motion to suppress 

evidence found during the search and seizure of Petitioner and his car would have 

been futile. “[F]ailing to make a futile motion is neither unreasonable nor 

prejudicial.” Jacobs v. Sherman, 301 F. App’x 463, 470 (6th Cir. 2008) (citing 

Strickland, 466 U.S. at 687). It follows that trial counsel was not ineffective for 

failing to move to suppress the evidence found during the police officers’ searches 

and seizures. 
22 

 3. Failure to Investigate and Interview

 Petitioner alleges that his trial attorney was ineffective for failing to 

investigate and interview all relevant witnesses, including Officers Kolke and 

Dunlap. 

 Defense attorneys have “a duty to make reasonable investigations or to make 

a reasonable decision that makes particular investigations unnecessary.” 

Strickland, 466 U.S. at 691. “This duty includes the obligation to investigate all 

witnesses who may have information concerning [a] client’s guilt or innocence.” 

Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). An attorney’s “failure to 

conduct a reasonable investigation into . . . ‘a known and potentially important 

witness’ violate[s] [a defendant’s] Sixth Amendment right to the effective 

assistance of counsel.” Id. at 259 (quoting Blackburn v. Foltz, 828 F.2d 1177, 

1183 (6th Cir. 1987)). But “[a] defense counsel has no obligation to . . . interview 

a witness whose testimony would not have exculpated the defendant.” Millender 

v. Adams, 376 F.3d 520, 527 (6th Cir. 2004) (quoting Millender v. Adams, 187 F. 

Supp. 2d 852, 877 (E.D. Mich. 2002) (citing Marra v. Larkins, 111 F. Supp. 2d 

575, 585 n.13 (E.D. Pa. 2000)). 

 a. Failure to Question the Search

 Petitioner contends that, if defense counsel had investigated the facts and 

interviewed Officer Kolke, he could have challenged Kolke’s search of his car and 
23 

inspection of the television on the ground that she lacked probable cause to search 

the vehicle at the time. Petitioner notes that Officer Kolke transported the car to 

the police department, found the television in the backseat of the car, and 

subsequently learned that the television was taken during the home invasion at Mr. 

Matthews’ residence. 

 The record supports Petitioner’s contention that Officer Kolke seized 

Petitioner’s car and located the television in the backseat of the car before she 

became aware of the home invasion and theft at Mr. Matthews’ home. (See ECF 

No. 1-1 at Pg ID 79.) However, the television would have been compared to Mr. 

Matthews’ missing television shortly afterward when Mr. Matthews reported the 

theft of a television from his home and gave his receipt for the television to police 

officers. Therefore, Petitioner was not prejudiced by defense counsel’s failure to 

interview Officer Kolke and question her regarding her alleged lack of probable 

cause to search his vehicle. 

 b. Failure to Investigate Serial Numbers

 Petitioner contends that defense counsel also was ineffective for failing to 

investigate and discover that the police merely compared the product number on 

the box containing the television with the product number on Mr. Matthews’ 

receipt for the television. According to Petitioner, the product number is not 

unique to an item in the same way that a serial number is, and if defense counsel 
24 

had realized this, he could have argued that the television in Petitioner’s car was 

not necessarily the television taken from Mr. Matthews’ home. 

 Police officer Aaron Mickey testified at trial that the serial number on the 

box of the television found in Petitioner’s car matched the serial number on Mr. 

Matthews’ receipt for the television taken from his home. (4/27/11 Trial Tr. at 

137-38.) Although, it was established at the Ginther hearing in state court that the 

receipt did not contain a serial number; it merely listed a product number. Further, 

trial counsel testified at the hearing that he did not know the difference between a 

part or product number and a serial number. (11/30/12 Ginther Hr’g Tr. at 13-14.) 

He also stated that he had assumed from the police investigator’s report that the 

number on the television box matched Mr. Matthews’ receipt. (Id. at 11-12.) He 

could not imagine that the police or Mr. Matthews would lie about the numbers 

being an exact match. (Id. at 19.) 

 Defense counsel’s failure to recognize that there was no serial number on 

Mr. Matthews’ receipt or on the box for the television was significant because, 

according to Petitioner, serial numbers are unique to a product, whereas a product 

or part number applies to all similar products. (Id. at 16-17.) The Michigan Court 

of Appeals, therefore, determined on review of Petitioner’s claim that it was 

objectively unreasonable for defense counsel not to carefully examine Mr. 
25 

Matthews’ receipt or to determine what the numbers on the receipt meant. Brown, 

2014 WL 2619395, at *4. 

 The Court of Appeals nevertheless concluded that counsel’s deficient 

performance did not prejudice the defense, because clarifying the police officer’s 

testimony at trial would not have significantly weakened the probative value of the 

evidence linking Petitioner to the home invasion at Mr. Matthews’ residence. In 

reaching this conclusion, the Court of Appeals noted: 

The fact that defendant was in possession of a new television of the 

same model as the new television taken from Matthews’s home would 

have still been strong circumstantial evidence linking defendant to the 

home invasion at Matthews’s residence. Other evidence, including 

footprints in the snow at Matthews’s home that matched defendant’s 

shoes, also linked defendant to that offense. In addition, the testimony 

indicated that defendant gave inconsistent accounts concerning where 

he allegedly obtained the television that was found in his car. 

Id. The Court of Appeals concluded from this evidence that the result of the trial 

in all likelihood would not have been different if defense counsel had clarified the 

matter at trial and, therefore, Petitioner had failed to establish that his attorney was 

ineffective. 

 This Court concludes for the same reasons that defense counsel’s alleged 

failure to investigate and interview witnesses about the numbers on the box for the 

television and on Mr. Matthews’ receipt did not prejudice the defense. Therefore, 

Petitioner has not satisfied the Strickland test, and he is not entitled to relief on his 

claim. 
26 

C. Claim Four: Violation of the Right not to be Subjected to 

Unreasonable Searches and Seizures

 Petitioner alleges next that the police officers’ search and seizure of his 

vehicle and person violated his constitutional right not to be subjected to 

unreasonable searches and seizures. Petitioner contends that the police lacked 

probable cause to stop and arrest him. 

 The Fourth Amendment guarantees people the right “to be secure in their 

persons, houses, papers, and effects, against unreasonable searches and seizures.” 

However, “where the State has provided an opportunity for full and fair litigation 

of a Fourth Amendment claim, a state prisoner may not be granted federal habeas 

corpus relief on the ground that evidence obtained in an unconstitutional search or 

seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976) 

(internal footnote omitted). 

 “This prohibition on federal habeas review of exclusionary rule claims 

applies only to prisoners who received ‘the opportunity for ‘full and fair 

consideration’ of their claims in state court.” Good v. Berghuis, 729 F.3d 636, 

637-38 (6th Cir. 2013), cert. denied, 135 S. Ct. 1174 (2015). “[T]he Powell

‘opportunity for full and fair consideration’ means an available avenue for the 

prisoner to present his claim to the state courts, not an inquiry into the adequacy of 

the procedure actually used to resolve that particular claim.” Id. at 639. 
27 

 “Michigan provide[s] an adequate avenue to raise a Fourth Amendment 

claim,” and Petitioner has not shown “that his claim was frustrated by a failure in 

Michigan’s Fourth-Amendment-review mechanism.” Hurick v. Woods, 672 F. 

App’x 520, 535 (6th Cir. 2016), cert.denied, 138 S. Ct. 96 (2017). In fact, he 

raised his Fourth Amendment arguments in the trial court, in the Michigan Court 

of Appeals, and in the Michigan Supreme Court. This Court, therefore, is not 

required to review Petitioner’s challenge to the search and seizure of his vehicle 

and person. The Fourth Amendment claim lacks merit, in any event, for the 

reasons given above in the discussion of Petitioner’s claim about trial counsel. 

 D. Claim Five: Error in Applying the Abandonment Principle

 In his fifth and final claim, Petitioner alleges that the state courts improperly 

applied the abandonment principle when reviewing his claim that the police 

improperly searched his car. The Michigan Court of Appeals stated that Petitioner 

abandoned his vehicle after crashing it and, therefore, he had no basis for 

challenging the search of his vehicle. 

 There was some basis for the state court’s conclusion, because Petitioner 

exited his car and ran from the police after he crashed into a tree. Both the United 

States Supreme Court and the United States Court of Appeals for the Sixth Circuit 

have recognized an exception to the warrant requirement where a suspect abandons 

the property in question. See Abel v. United States, 362 U.S. 217, 240-41 (1960) 
28 

(concluding that FBI agents acted lawfully in seizing items without a warrant 

where the petitioner abandoned the items by throwing them in a wastepaper basket 

in a hotel room which he vacated); see also United States v. Jones, 406 F. App’x 

953, 954 (6th Cir. 2011) (stating that the “[s]earch and seizure of abandoned 

property does not violate the Fourth Amendment”); accord United States v. 

Labelle, 390 F. App’x 539, 541 (6th Cir. 2010)( stating that “[a] defendant forfeits 

any legitimate expectation of privacy he might have in a property when he 

abandons that property”); United States v. Eden, 190 F. App’x 416, 421 (6th Cir. 

2006) (stating that “neither a warrant nor probable cause is required to seize and 

search property that has been abandoned”); United States v. McClendon, 86 F. 

App’x 92, 94 (6th Cir. 2004) (“A warrantless search of abandoned property does 

not violate the Fourth Amendment’s proscription against unreasonable searches.”). 

 Even if the Michigan Court of Appeals incorrectly applied the abandonment 

doctrine to Petitioner’s case, the Court of Appeals reasonably concluded for other 

reasons that the search of Petitioner’s car was proper and that a motion to suppress 

evidence found in the car would have been futile. Therefore, Petitioner’s challenge 

to the Court of Appeals application of the abandonment theory is not a basis for 

habeas relief. 
29 

V. CONCLUSION

 For the reasons given above, the state courts’ rejection of Petitioner’s claims 

did not result in decisions that were contrary to Supreme Court precedent, 

unreasonable applications of Supreme Court precedent, or unreasonable 

applications of the facts. The state court decisions also were “not so lacking in 

justification that there was an error . . . beyond any possibility for fairminded 

disagreement.” Richter, 562 U.S. at 103. 

VI. CERTIFICATE OF APPEALABILITY 

 AND LEAVE TO APPEAL IN FORMA PAUPERIS

 “[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no 

automatic right to appeal a district court’s denial or dismissal of the petition. 

Instead, [the] petitioner must first seek and obtain a [certificate of appealability.]” 

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may 

issue “only if the applicant has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard 

by demonstrating that jurists of reason could disagree with the district court’s 

resolution of his constitutional claims or that jurists could conclude the issues 

presented are adequate to deserve encouragement to proceed further.” Miller-El, 

537 U.S. at 327. 

 Reasonable jurists could not debate the Court’s assessment of Petitioner’s 

claims, nor conclude that the issues deserve encouragement to proceed further. 
30 

The Court, therefore, declines to issue a certificate of appealability. Nevertheless, 

because an appeal could be taken in good faith, Petitioner may proceed in forma 

pauperis on appeal if he appeals this decision. 

 For the reasons given above, 

IT IS ORDERED that the petition for writ of habeas corpus (ECF No. 1) is 

DENIED. 

IT IS FURTHER ORDERED that a certificate of appealability is 

DENIED. 

IT IS FURTHER ORDERED that Petitioner may proceed in forma 

pauperis on appeal. 

IT IS FURTHER ORDERED that Petitioner motion for substitution of 

warden is GRANTED, and Jack Kowalski is substituted for Joe Barrett. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: June 12, 2018 

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

record and/or pro se parties on this date, June 12, 2018, by electronic and/or U.S. 

First Class mail. 

 s/ R. Loury 

 Case Manager