UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMAL JAY LEWIS, #345442,

Petitioner,

CASE NO. 2:15-CV-10880 

v. HONORABLE GERSHWIN A. DRAIN

DUNCAN MACLAREN,

Respondent.

________________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF

HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,

AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner

Jamal Jay Lewis (“Petitioner”) was convicted of possession of burglar's tools, MICH. COMP.

LAWS § 750.116; two counts of breaking and entering of a motor vehicle with damage to

the vehicle, MICH.COMP.LAWS § 750.356a(3); breaking and entering of a motor vehicle with

intent to steal property worth less than $200, MICH. COMP. LAWS § 750.356a(2)(a); three

counts of larceny from a motor vehicle, MICH. COMP. LAWS § 750.356a(1); three counts of

attempt to unlawfully drive away a motor vehicle, MICH. COMP. LAWS § 750.413; MICH.

COMP. LAWS § 750.92; and two counts of receiving and concealing stolen property with a

value greater than $200 and less than $1,000, MICH.COMP.LAWS § 750.535(4)(a), following

a jury trial in the Wayne County Circuit Court in 2012. He was sentenced, as a fourth

habitual offender, MICH. COMP. LAWS § 769.12, to 41⁄2 to 20 years imprisonment for the

possession of burglar's tools conviction, two to five years imprisonment for each of the
breaking and entering a motor vehicle with damage to the vehicle convictions, three months

in jail for the breaking and entering of a motor vehicle with intent to steal property worth

less than $200 conviction, two to five years imprisonment for each of the larceny from a

motor vehicle convictions, two to five years imprisonment for each of the attempt to

unlawfully drive away a motor vehicle convictions, and one year in jail for each of the

receiving and concealing stolen property with a value greater than $200 and less than

$1,000 convictions.

In his pleadings, Petitioner raises claims concerning the search and seizure of

evidence, the addition of charges mid-trial, the effectiveness of trial counsel, his trial

clothing, and the lack of an evidentiary hearing on direct appeal. For the reasons set forth,

the Court denies the petition for a writ of habeas corpus. The Court also denies a

certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner’s convictions arise from his possession of burglary tools and stolen

property, as well as his actions of breaking into cars and stealing personal property, in

Harper Woods, Michigan in 2011. The Michigan Court of Appeals described the relevant

facts, which are presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner

v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

In the early morning hours of November 29, 2011, Harper Woods police

received a call concerning a man trespassing on private property and a call

of a suspicious person, as well as a call regarding a vehicle break-in. The

police came upon defendant, on foot, in the immediate area of and shortly

after the trespassing and suspicious person calls. A search of his person

revealed three screwdrivers and two pairs of vise grips. A further search of

defendant's pockets and a backpack he had on his person revealed two GPS

units, a cell phone, music compact discs, and vehicle registration forms,

insurance certificates, and auto declaration forms bearing another individual's

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name. Defendant was transported to the police station, where a connection

was made between the items he had in his possession and recent vehicle

break-ins that had occurred in the area where he had been picked up. As a

result, defendant was arrested for and ultimately convicted of the above

indicated charges.

People v. Lewis, No. 311813, 2014 WL 61310, *1 (Mich. Ct. App. Jan. 7, 2014)

(unpublished).

Following his convictions and sentencing, Petitioner filed an appeal of right with the

Michigan Court of Appeals raising the same claims contained in his current petition. The

Michigan Court of Appeals affirmed his convictions. People v. Lewis, No. 311813, 2014

WL 61310 (Mich. Ct. App. Jan. 7, 2014) (unpublished). Petitioner then filed an application

for leave to appeal with the Michigan Supreme Court, which was denied. People v. Lewis,

496 Mich. 865, 849 N.W.2d 359 (July 29, 2014).

Petitioner thereafter filed his federal habeas petition. Respondent has filed an

answer to the petition contending that it should be denied.

III. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at

28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use

when considering habeas petitions brought by prisoners challenging their state court

convictions. The AEDPA provides in relevant part:

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

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(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) (1996).

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

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

set of facts that are materially indistinguishable from a decision of [the Supreme] Court

and nevertheless arrives at a result different from [that] precedent.’” Mitchell v. Esparza,

540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06

(2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas

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

[the Supreme] Court but unreasonably applies that principle to the facts of petitioner’s

case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413);

see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court to find a state

court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision

must have been more than incorrect or erroneous. The state court’s application must

have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations omitted);

see also Williams, 529 U.S. at 409. “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, 521 U.S.

at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

The United States Supreme Court has held that “a state court’s determination that

a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

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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 has emphasized “that even a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75

(2003)). 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. Thus, in order

to obtain federal habeas relief, a state prisoner must show that the state court’s rejection

of a 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.;

see also White v. Woodall, _ U.S. _, 134 S. Ct. 1697, 1702 (2014). Federal judges “are

required to afford state courts due respect by overturning their decisions only when there

could be no reasonable dispute that they were wrong.” Woods v. Donald, _ U.S. _, 135

S. Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long as it is within the

“realm of possibility” that fairminded jurists could find the state court decision to be

reasonable. Woods v. Etherton, _ U.S. _, 136 S. Ct. 1149, 1152 (2016).

Section 2254(d)(1) limits a federal court’s review to a determination of whether the

state court’s decision comports with clearly established federal law as determined by the

Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at 412; 

see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court

“has held on numerous occasions that it is not ‘an unreasonable application of clearly

established Federal law’ for a state court to decline to apply a specific legal rule that has

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not been squarely established by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120,

125-26 (2008) (per curiam)); Lockyer, 538 U.S. at 71-72. Section 2254(d) “does not

require a state court to give reasons before its decision can be deemed to have been

‘adjudicated on the merits.’” Harrington, 562 U.S. at 100. Furthermore, it “does not

require citation of [Supreme Court] cases–indeed, it does not even require awareness of

[Supreme Court] cases, so long as neither the reasoning nor the result of the state-court

decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540

U.S. at 16.

The requirements of “clearly established law” are to be determined solely by

Supreme Court precedent. Thus, federal circuit or district court cases do not constitute

clearly established Supreme Court law and cannot provide the basis for federal habeas

relief. See Parker v. Matthews, 567 U.S. _, 132 S. Ct. 2148, 2155 (2012) (per curiam);

see also Lopez v. Smith, _ U.S. _ 135 S. Ct. 1, 2 (2014) (per curiam). The decisions of

lower federal courts, however, may be useful in assessing the reasonableness of a state

court’s decision. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v.

Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 2d 354, 359

(E.D. Mich. 2002).

Lastly, a state court’s factual determinations are presumed correct on federal

habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with

clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). 

Moreover, habeas review is “limited to the record that was before the state court.” Cullen

v. Pinholster, 563 U.S. 170, 181 (2011).

IV. Discussion

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A. Illegal Arrest/Search and Seizure Claim

Petitioner first asserts that he is entitled to habeas relief because the trial court

erred in denying his motion to suppress based upon an illegal arrest, search, and seizure

of evidence from his person. Respondent contends that this claim is not cognizable upon

habeas review and lacks merit.

Federal courts will not address a Fourth Amendment claim upon habeas review if

the petitioner had a full and fair opportunity to litigate the claim in state court and the

presentation of the claim was not thwarted by any failure of the state’s corrective

processes. See Stone v. Powell, 428 U.S. 465, 494-95 (1976). A court must perform two

distinct inquiries when determining whether a petitioner may raise a claim of illegal arrest

in a habeas action. First, the “court must determine whether the state procedural

mechanism, in the abstract, presents the opportunity to raise a fourth amendment claim. 

Second, the court must determine whether presentation of the claim was in fact frustrated

because of a failure of that mechanism.” Machacek v. Hofbauer, 213 F.3d 947, 952 (6th

Cir. 2000) (quoting Riley v. Gray, 674 F.2d 522 (6th Cir. 1982)).

“Michigan has a procedural mechanism which presents an adequate opportunity

for a criminal defendant to raise a Fourth Amendment claim.” Robinson v. Jackson, 366

F. Supp. 2d 524, 527 (E.D. Mich. 2005). This procedural mechanism is a motion to

suppress, ordinarily filed before trial. See People v. Ferguson, 376 Mich. 90, 93-94, 135

N.W.2d 357, 358-59 (1965) (describing the availability of a pre-trial motion to suppress);

see also People v. Harris, 95 Mich. App. 507, 509, 291 N.W.2d 97, 99 (1980) (analyzing

the legality of a warrantless search, seizure, and arrest even though raised for the first

time on appeal). Consequently, Petitioner is entitled to relief on this issue only if he

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establishes that he was prevented from litigating the Fourth Amendment issue by a failure

of Michigan’s procedural mechanism.

Petitioner has not done so. The record reveals that Petitioner, through counsel,

filed a motion to suppress with the state trial court, which was denied. Petitioner then

raised his Fourth Amendment issues on direct appeal before the Michigan Court of

Appeals and was denied relief. See Lewis, 2014 WL 61310 at *1-3. The Michigan

Supreme Court subsequently denied leave to appeal. It is thus clear that the Michigan

courts were cognizant of Petitioner’s Fourth Amendment issues and that he received all

of the process that he was due. Petitioner’s Fourth Amendment claim is therefore not

cognizable on habeas review pursuant to Stone v. Powell.

Moreover, to the extent that Petitioner asserts that the trial court erred in denying

the motion to suppress under Michigan law, he merely alleges a violation of state law

which does not justify federal habeas relief. State courts are the final arbiters of state law

and federal courts will not intervene in such matters. See Lewis v. Jeffers, 497 U.S. 764,

780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987); see also Bradshaw v.

Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). 

Habeas relief does not lie for perceived errors of state law. See Estelle v. McGuire, 502

U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas court to reexamine

state-court determinations on state-law questions”). Habeas relief is thus not warranted

on this claim.

B. Amendment to the Information Claim

Petitioner next asserts that he is entitled to habeas relief because his due process

rights were violated when the prosecution was allowed to amend the information mid-trial

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to add two charges of receiving and concealing stolen property with a value greater than

$200 and less than $1,000 without an arraignment or a trial continuance. Respondent

contends that this claim is not cognizable upon habeas review and/or lacks merit.

While prosecutors must “refrain from improper methods calculated to produce a

wrongful conviction,” Berger v. United States, 295 U.S. 78, 88 (1935), they have significant

discretion in determining what charges to file against an accused provided that probable

cause exists to believe that an offense was committed by the accused under the charging

statute. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); United States v. Davis, 15

F.3d 526, 529 (6th Cir. 1994). The Sixth Amendment to the United States Constitution,

applied to the states through Due Process Clause of the Fourteenth Amendment,

guarantees a criminal defendant the right to be informed of the nature of the accusations

against him. Cole v. Arkansas, 333 U.S. 196, 201 (1948); In Re Oliver, 333 U.S. 257, 273

(1948); Lucas v. O'Dea, 179 F. 3d 412, 417 (6th Cir. 1999). Such due process requires

that “whatever charging method the state employs must give the criminal defendant fair

notice of the charges against him to permit adequate preparation of his defense.” Olsen

v. McFaul, 843 F. 2d 918, 930 (6th Cir. 1988). An information or indictment “which fairly

but imperfectly informs the accused of the offense for which he [or she] is to be tried does

not give rise to a constitutional issue cognizable in habeas proceedings.” Mira v. Marshall,

806 F. 2d 636, 639 (6th Cir. 1986); see also Dell v. Straub, 194 F. Supp. 2d 629, 653-54

(E.D. Mich. 2002).

An alleged defect in a state court information or indictment does not offend the

Constitution unless a habeas petitioner can establish that: (1) he or she did not receive

adequate notice of the charges; and that (2) he or she was therefore denied the

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opportunity to defend against the charges. Roe v. Baker, 316 F.3d 557, 570 (6th Cir.

2002); see also Rhea v. Jones, 622 F. Supp. 2d 562, 583 (W.D. Mich. 2008) (when

reviewing amendments to state charging documents, federal habeas courts focus on

whether the defendant was surprised by the amendment or otherwise prejudiced in his or

her ability to present a defense); Sharrar v. Foltz, 658 F. Supp. 862, 866-67 (E.D. Mich.

1987) (changing date of alleged sexual assault just before trial did not prejudice petitioner

where he failed to identify additional witnesses or show that he would have conducted

defense differently).

The Michigan Court of Appeals denied relief on this claim finding that the

amendment was permissible under state law to conform to the evidence at trial and that

it was neither an unfair surprise nor unfairly prejudicial. The court explained:

A trial court's decision to grant a motion to amend the information is

reviewed for an abuse of discretion. People v. Unger, 278 Mich App 210,

221; 749 NW2d 272 (2008). “An abuse of discretion occurs when the court

chooses an outcome that falls outside the range of reasonable and

principled outcomes.” Id. at 217.

Pursuant to MCR 6.112(H) the court may permit the prosecutor to amend

the information before, during, or after trial unless the amendment would

unfairly surprise or prejudice the defendant. Similarly, MCL 767.76 provides

that the “court may at any time before, during or after the trial amend the

indictment in respect to any defect imperfection or omission in form or

substance or of any variance with the evidence.” See also People v. McGee,

258 Mich App 683, 686; 672 NW2d 191 (2003).

The original felony information in this matter charged defendant with 11

counts, including three separate counts of larceny from a motor vehicle

concerning unlawfully removing or taking (1) a GPS from a vehicle owned

by Joseph Buccinna (2) a GPS from a vehicle owned by Ralph Gasperoni,

and (3) a phone from a vehicle owned by Ralph Gasperoni. Evidence

presented during trial included testimony from Buccinna that on November

29, 2011, his truck was broken into and a GPS stolen from the truck,

testimony from Gasperoni that his suburban was broken into on the same

day and a GPS and cell phone stolen from the suburban, and testimony

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from Officer Reeves that when he made contact with defendant in the early

morning hours of November 29, 2011, defendant had both GPS units and

the cell phone on his person. At the conclusion of the presentation of the

evidence, the trial court indicated that discussions had taken place with

respect to jury instructions and that, specifically, there had been a

discussion regarding receiving and concealing stolen property. The trial

court opined that based upon the evidence, it believed it was appropriate to

amend the information to add two counts of receiving and concealing stolen

property valued at $200–$1000 regarding (1), the GPS stolen from Mr.

Buccinna's vehicle and (2) the GPS and cell phone stolen from Mr.

Gasperoni's vehicle.

While defendant argues that he was surprised and prejudiced by the

amendment contrary to MCR 6.112(H) and was denied the opportunity to

defend against such charges, not only did the evidence support such

charges, the defense arguments and defendant's statements on the record

defeat such an argument. At the beginning of the second day of trial, before

the close of the proofs, defense counsel indicated to the trial court that she

had an additional proposed jury instruction to discuss. Defense counsel

stated that she had not yet disclosed the proposed instruction to the

prosecutor, and then told both the prosecutor and the trial court that the

proposed jury instruction was:

No duty to prove defense theory. Just that because we're

arguing he's guilty of receiving and concealing stolen property,

but not breaking into the cars, which is a list of, like, nine

different charges. But, rather than being guilty of actually

breaking into the cars, he's guilty of having the property.

And that even if we don't have—the instruction reads,

however, “Because the prosecution has the burden of proof,

the defendant does not need to prove that he is only guilty of

receiving and concealing stolen properly. If you have a

reasonable doubt that the defendant is guilty of—“, and then,

have to list all of the breaking into car offenses, rather than

receiving and concealing stolen—or if you believe he's guilty

of receiving and concealing stolen property, rather than

breaking into the car, you must acquit him of all the charged

offenses.

Thus, it was defendant who first raised the issue of his having had received

and concealed stolen property, albeit in the manner of a jury instruction.

Having raised the issue of his guilt of these specific offenses in the first

place, defendant cannot claim to be unfairly surprised by the amendment to

include the charges against him.

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Further, defendant has not established that the amendment unfairly

prejudiced his defense. Again, the amendment did not take place until after

defendant essentially asserted that he committed the charged crimes and

defendant has not suggested on appeal what defenses he would have

undertaken if the amended information had been filed from the beginning.

In fact, after it was made clear that an amended information to include the

two additional counts would be filed, but prior to the jury being instructed on

the amended charges, a short discussion concerning a possible plea and

sentencing agreement was held on the record wherein defendant stated as

follows:

Defendant ... I did have the tools, I was in possession of the

tools. That's a fact.

Court: Okay. Okay.

Defendant: And the GPS systems. There's no way around

that. I can accept responsibility for my actions.

* * *

Defendant: ... I just don't want to go to prison for something I

did not do. I didn't break into people's cars.

Court Well, okay, but—

Defendant: I did have their stuff in my possession.

Thus, even after knowing that the information would be amended to include

two counts of receiving and concealing stolen property concerning the GPS

units, and after hearing testimony from the owners of the GPS units that

they had not given anyone permission to take the units from their vehicles,

and testimony from the arresting officer that a search of defendant's person

had revealed the two GPS units and cell phone later identified as those

belonging to Buccinna and Gasperoni, defendant not only did not defend

against the charges, he affirmatively admitted to having the items in his

possession and indicated he could accept responsibility for that action.

Because defendant has not shown that he was surprised or unfairly

prejudiced by the amendment of the information, reversal is not warranted.

McGee, 258 Mich App at 702. The trial court also did not abuse its discretion

in granting the motion to amend the information. Unger, 278 Mich App at

221.

Lewis, 2014 WL 61310 at *4-5.

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The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application thereof. First, Petitioner was given sufficient notice of the

charges at the time of trial. The receiving and concealing stolen property charges were

also related to the previously-charged offenses and involved the same property items. 

Second, the amendment was not a surprise given that the evidence at trial supported the

receiving and concealing stolen property charges and the defense raised the issue of

Petitioner’s guilt of those offenses in the context of the jury instructions at the time of trial. 

Third, the amendment was not unfairly prejudicial because it conformed to the trial

testimony and Petitioner admitted the conduct supporting the charges. Lastly, Petitioner

fails to demonstrate how his defense would have differed if the information had been

amended sooner and/or that such action would have affected the outcome at trial. 

Petitioner had sufficient notice of the receiving and concealing stolen property charges and

had an adequate opportunity to defend against those charges. He thus fails to establish

a due process violation. Habeas relief is not warranted on this claim.

C. Effectiveness of Trial Counsel Claims

Petitioner next asserts that he is entitled to habeas relief because trial counsel was

ineffective for failing to object to the amendment of the information, for failing to have a

defense strategy, for failing to read the pre-sentence investigation report, make

corrections, and present mitigating evidence, and for failing to object to the sufficiency of

the evidence at the preliminary examination. Respondent contends that the defense

strategy portion of this claim is unexhausted and that all of the claims lack merit.

The Sixth Amendment to the United States Constitution guarantees a criminal

defendant the right to the effective assistance of counsel. In Strickland v. Washington,

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466 U.S. 668 (1984), the United States Supreme Court set forth a two-prong test for

determining whether a habeas petitioner has received ineffective assistance of counsel. 

First, a petitioner must prove that counsel’s performance was deficient. This requires a

showing that counsel made errors so serious that he or she was not functioning as counsel

as guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the

petitioner must establish that counsel’s deficient performance prejudiced the defense. 

Counsel’s errors must have been so serious that they deprived the petitioner of a fair trial

or appeal. Id. 

To satisfy the performance prong, a petitioner must identify acts that were “outside

the wide range of professionally competent assistance.” Id. at 690. The reviewing court’s

scrutiny of counsel’s performance is highly deferential. Id. at 689. There is a strong

presumption that trial counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment. Id. at 690. The petitioner

bears the burden of overcoming the presumption that the challenged actions were sound

trial strategy.

As to the prejudice prong, a petitioner must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. A reasonable probability is one that is sufficient to

undermine confidence in the outcome of the proceeding. Id. “On balance, the benchmark

for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined

the proper functioning of the adversarial process that the [proceeding] cannot be relied on

as having produced a just result.” Strickland, 466 U.S. at 686.

The Supreme Court has confirmed that a federal court’s consideration of ineffective

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assistance of counsel claims arising from state criminal proceedings is quite limited on

habeas review due to the deference accorded trial attorneys and state appellate courts

reviewing their performance. “The standards created by Strickland and § 2254(d) are both

‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Harrington,

562 U.S. at 105 (internal and end citations omitted). “When § 2254(d) applies, the

question is not whether counsel’s actions were reasonable. The question is whether there

is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.

Petitioner first asserts that trial counsel was ineffective for failing to object to the

amendment of the information. The Michigan Court of Appeals denied relief on this claim

finding that any objection by counsel would have been futile because the trial court did not

abuse its discretion in amending the information. Lewis, 2014 WL 61310 at *7. The state

court’s decision is neither contrary to Supreme Court precedent nor an unreasonable

application of federal law or the facts. Given the Michigan Court of Appeals’ determination

and this Court’s determination that the amendment to the information was permissible,

Petitioner cannot establish that trial counsel erred and/or that he was prejudiced by

counsel’s conduct. Counsel cannot be deemed ineffective for failing to make a futile or

meritless objection. See Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2014) (“Omitting

meritless arguments is neither professionally unreasonable nor prejudicial.”); United States

v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000).

Additionally, counsel may have reasonably decided not to object as part of a

rational trial strategy – arguing that Petitioner was only guilty of the lesser offenses of

receiving and concealing stolen property rather than the greater charged offenses. 

Defense counsel may concede a defendant’s guilt of lesser offenses in an effort to avoid

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conviction on more serious charges without running afoul of the Sixth Amendment. See,

e.g., Poindexter v. Mitchell, 454 F.3d 564, 582 (6th Cir. 2006) (citing Florida v. Nixon, 543

U.S. 175, 189 (2004), and ruling that counsel was not ineffective for conceding that the

petitioner was guilty of murder but arguing that he was not guilty of aggravated murder). 

Petitioner fails to establish that counsel was ineffective under the Strickland standard.

Petitioner also asserts that trial counsel was ineffective for failing to have a defense

strategy. Petitioner did not raise this issue as a distinct claim in the state courts. 

Consequently, it is unexhausted. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)

("state prisoners must give the state courts one full fair opportunity to resolve any

constitutional issues by invoking one complete round of the State's established appellate

review process); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); see also Williams

v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans v. Brigano, 228 F.3d 674,

681 (6th Cir. 2000). While the exhaustion requirement is strictly enforced, it is not a

jurisdictional prerequisite for bringing a habeas action. Granberry v. Greer, 481 U.S. 129,

134-35 (1987); Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000). For example, an

unexhausted claim may be addressed if the pursuit of state court remedies would be futile,

Witzke v. Withrow, 702 F. Supp. 1338, 1348 (W.D. Mich. 1988), or if the unexhausted

claim is meritless such that addressing it would be efficient and not offend federal-state

comity. Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); see also 28 U.S.C. §

2254(b)(2) (habeas petition may be denied on the merits despite the failure to exhaust

state court remedies). The Court finds that the interests of justice are best served by

adjudicating this claim on the merits because further exhaustion is likely futile and the

claim lacks merit.

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It is well-settled that defense counsel must conduct a reasonable investigation into

the facts of a defendant’s case, or make a reasonable determination that such

investigation is unnecessary. Wiggins, 539 U.S. at 522-23; Strickland, 466 U.S. at 691;

Stewart v Wolfenbarger, 468 F.3d 338, 356 (6th Cir. 2007); Towns v. Smith, 395 F.3d 251,

258 (6th Cir. 2005). The duty to investigate “includes the obligation to investigate all

witnesses who may have information concerning . . . guilt or innocence.” Towns, 395 F.3d

at 258. That being said, decisions as to what evidence to present and whether to call

certain witnesses are presumed to be matters of trial strategy. When making strategic

decisions, counsel’s conduct must be reasonable. Roe v. Flores-Ortega, 528 U.S. 470,

481 (2000); see also Wiggins, 539 U.S. at 522-23. The failure to call witnesses or present

other evidence constitutes ineffective assistance of counsel only when it deprives a

defendant of a substantial defense. Chegwidden v. Kapture, 92 F. App’x 309, 311 (6th Cir.

2004); Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002).

In this case, the record indicates that trial counsel had a reasonable trial strategy. 

Counsel first challenged the legality of Petitioner’s arrest and the search and seizure that

netted the stolen property by filing a motion to suppress the evidence. When the trial court

denied that motion, counsel then challenged the strength of the prosecution’s case by

arguing that the prosecution failed to prove that Petitioner was the person who broke into

the victims’ cars and the evidence merely showed that he was in possession of stolen

property and burglary tools. Under the circumstances, counsel’s conduct was reasonable

and Petitioner was not deprived of a substantial defense. The fact that counsel’s strategy

was ultimately unsuccessful does not mean that counsel was ineffective. See Moss v.

Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002) (“an ineffective-assistance-of-counsel claim

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cannot survive so long as the decisions of a defendant’s trial counsel were reasonable,

even if mistaken”).

Moreover, Petitioner fails to present any facts to show what more trial counsel could

have done which would have benefitted the defense or positively affected the outcome at

trial. Conclusory allegations, without evidentiary support, are insufficient to justify habeas

relief. See Cross v. Stovall, 238 F. App’x 32, 39-40 (6th Cir. 2007); Prince v. Straub, 78

F. App’x 440, 442 (6th Cir. 2003); Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998)

(conclusory allegations of ineffective assistance of counsel do not justify federal habeas

relief); see also Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (bald assertions

and conclusory allegations do not provide sufficient basis for an evidentiary hearing in

habeas proceedings). Petitioner fails to establish that counsel was ineffective under the

Strickland standard.

Petitioner next asserts that trial counsel was ineffective for failing to read the presentence investigation report, to make corrections, and to present mitigating evidence at

sentencing. The Michigan Court of Appeals denied relief on this claim. The court

explained:

We find no basis for defendant's allegations of ineffectiveness.

Defendant has not supported his allegation that counsel did not read the

presentence investigation report. He has simply made the blanket statement

that counsel did not read it and, the trial court asked counsel, “Did you have

an opportunity to review the—“. Defense counsel responded, “I did, your

Honor. I believe that the rest of the presentence investigation report is

factually accurate. I don't know if [defendant] would like to address the

Court.”

Defendant asserts that the presentence investigation report inaccurately

indicates that (1) “MDOC records show the defendant tested positive for

cocaine in 2008,” (2) that Harriet Stacko contacted police when she

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observed defendant enter her garage whereas at trial Ms. Stacko stated that

defendant was not the individual she observed on her property, and (3) that

defendant had broken into three vehicles and attempted to break into a

fourth when police were notified. This Court does not have the benefit of

reviewing the presentence investigation report to determine if the above

statements are, in fact, contained therein but, more importantly, defendant

had the opportunity to address the trial court on his own behalf and did not

bring these allegedly inaccuracies to the court's attention. And, it should be

noted, that defendant takes issue with and alleged inaccuracy reported in an

MDOC record over which neither defense counsel nor the trial court would

have control, and Ms. Stacko did not specifically testify at trial that it was not

defendant she observed in her yard, but instead that the persons she

observed seemed younger and she only knew what he had on, which did not

match the clothing that defendant had on when he was found a short time

later. Further, testimony was presented at trial that Buccinna's, Gasperoni's

and Karen Pope's vehicles had been broken into, and another witness

testified that as she came out of her home in the morning, a man fitting

defendant's description was standing in her yard on the side of a car in the

driveway. Thus, the testimony was consistent with three vehicles having

been broken into a possible fourth attempted break-in.

Finally, defendant contends that friends of his were available to provide

testimony in support of a lower sentence and that counsel failed to call them

in to testify at his sentencing or to provide other mitigating evidence on his

behalf. However, defendant has failed to identify these supporting friends or

provide affidavits concerning their proposed supportive statements, and has

failed to identify any other mitigating evidence that counsel should have

presented on his behalf. His argument thus fails.

Lewis, 2014 WL 61310 at *7-8.

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law or the facts. First, the record belies Petitioner’s

claim that counsel failed to read the pre-sentence report. Second, Petitioner fails to show

that the pre-sentence report contained materially inaccurate information which affected his

sentence or that the trial court relied upon any such information. Rather, the record

indicates that the trial court sentenced Petitioner based upon his offenses, his lack of

remorse, and his habitual offense status. Third, Petitioner fails to allege sufficient facts

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or present evidence to support his mitigation claim. As discussed, conclusory allegations

are insufficient to justify federal habeas relief. Petitioner fails to establish that counsel was

ineffective under the Strickland standard.

Petitioner also asserts that trial counsel was ineffective for failing to object to the

sufficiency of the evidence at the preliminary examination. The Michigan Court of Appeals

denied relief on this claim. The court explained:

Defendant lastly argues that defense counsel was ineffective for failing to

object to the sufficiency of the evidence at his preliminary examination.

Defendant specifically contends that a reasonable attorney would have

noted the discrepancies in the description of the suspicious person given by

witness Stacko and the description of defendant and then would have used

the discrepancies to demonstrate an illegal arrest and thereafter argued that

evidence seized as a result of the arrest was fruit of the poisonous tree.

However, defense counsel did challenge defendant's arrest and moved to

suppress illegal obtained evidence on exactly the grounds suggested by

defendant. An evidentiary hearing on defendant's motion to suppress

illegally suppressed evidence was held prior to trial and the motion was

denied. Defendant has identified no other action that should have been

taken by counsel with respect to the evidence presented at the preliminary

examination or thereafter. This argument thus fails..

Lewis, 2014 WL 61310 at *8.

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law or the facts. The record indicates that trial counsel

extensively cross-examined the arresting police officer at the preliminary examination,

objected to the bind-over decision, and challenged the legality of Petitioner’s arrest and

the search and seizure of evidence. Counsel’s actions were reasonable. As noted supra,

the fact that counsel’s strategy was unsuccessful does not mean that counsel was

ineffective. Petitioner fails to show what more counsel could have done which would have

affected the outcome at the preliminary examination or trial. He thus fails to establish that

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counsel was ineffective under the Strickland standard. Habeas relief is not warranted on

these claims.

D. Trial Clothing Claim

Petitioner next asserts that he is entitled to habeas relief because the trial court

forced him to wear the clothes that he was wearing when he was arrested throughout the

trial thereby implying to the jury that he was incarcerated and guilty. Respondent contends

that this claim lacks merit.

Due process precludes a defendant from being compelled to stand trial in jail or

prison garb as long as the defendant makes a timely objection/request. Estelle v.

Williams, 425 U.S. 501, 512 (1976). Compelling a defendant to appear in prison garb

impairs the presumption of innocence guaranteed under the Fourteenth Amendment

because it presents the unacceptable risk of affecting a juror's judgment and furthers no

essential state policy. Id. at 503-05. It is only a state's compulsion that is prohibited and

not the wearing of prison garb in general because defendants sometimes use prison garb

as a tactic to elicit sympathy from the jury. Id. at 508.

The Michigan Court of Appeals denied relief on this claim. The court explained:

Defendant also contends that the trial court violated his right to a fair trial

when it failed to allow him to change into clothing provided by defense

counsel for trial and instead essentially forced him to wear identifiable jail

clothing. We disagree.

Whether a defendant was denied his right to due process involves a

constitutional issue that we review de novo. People v. Sadows, 283 Mich

App 65, 67; 768 NW2d 93 (2009). Because a defendant is entitled to be

brought before the court in proper attire, he is entitled to wear civilian, rather

than prison, clothing. People v. Lewis, 160 Mich App 20, 30; 408 NW2d 94

(1987). Thus, a trial court must grant a criminal defendant's timely request

to wear civilian clothing during trial. People v. Harris, 201 Mich App 147,

151; 505 NW2d 889 (1993). However, “[o]nly if a defendant's clothing can

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be said to impair the presumption of innocence will there be a denial of due

process.” Lewis, 160 Mich App at 30–31.

On the first day of trial, prior to the jury being brought in, defense counsel

noted that she had brought in clothing for defendant to wear, as she knew

he did not have any family in the area to bring him appropriate clothing to

wear during trial. No further discussion was held at that time.

At the conclusion of the first day of trial, the trial court noted that a

discussion had taken place off the record concerning defendant's clothing.

According to the trial court, both the judge and the Sheriff's Department had

a policy in refusing to allow clothing to be brought in through the courtroom

for a defendant to wear and that the clothing had to be brought through the

jail. Defense counsel indicated she had a problem with that policy because

defendant had no family to bring him clothing at the jail and that defendant

had worn the clothing that he had been arrested in for purposes of that day's

trial. Defense counsel stated that if defendant were to wear the same

clothing for the next day's trial, the jury would be aware that defendant was

in jail and that he may as well be attending trial in jail clothing because it

would arouse the same bias in the jury. The trial court noted that the policy

was in place so that the jail could screen the clothing for any type of

contraband or weapons and that while it was sympathetic to defendant's

situation, the purpose behind the policy was valid and would not be violated.

The trial court further opined that defendant's wearing the same clothes two

days in a row would not necessarily indicate to the jury that he was

incarcerated and raise a bias, as people come to court in same clothing two

days in a row all of the time. The trial court thus denied defense counsel's

motion to bring clothing into the courtroom for defendant.

While defendant contends he appeared before the jury in jailhouse issued

green clothing, defense counsel indicated that defendant appeared in the

clothing in which he wore when he was arrested, i.e., civilian clothing. When

Officer Reeves was asked at trial to identify the person whom he arrested

on the date the incidents took place, he identified defendant as the person

sitting at the defense table “wearing all gray.” Thus, it appears that

defendant was not wearing jailhouse issued green clothing on the first day

of trial. And, a defendant ordered to proceed in front of a jury dressed in

casual street clothes has not been denied due process. Lewis, 160 Mich

App at 30–31. Where defendant has not established that he was wearing

jailhouse issued clothing in the first place, his claim of a violation of due

process on this ground must fail. Moreover, the trial court did not deny

defendant's motion to appear in civilian clothing; it simply denied defense

counsel's request to have defendant's clothing brought to him through the

courtroom rather than through the jail.

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Lewis, 2014 WL 61310 at *6.

The state court’s denial of relief is neither contrary to Supreme Court precedent nor

an unreasonable application of federal law or the facts. First, Petitioner’s request to

change into new clothes brought to the courthouse by his attorney at the start of trial was

not particularly timely. Second, and more importantly, Petitioner’s clothing was his own

clothing and not clearly-identifiable as prison garb. Courts are not required to furnish

alternative clothing or to allow a defendant to wear particular clothing. See, e.g., United

States v. Williams, 641 F.3d 758, 767 (6th Cir. 2011); accord Van Gorder v. Allerd, 387

F. Supp. 2d 251, 261 (W.D.N.Y. 2005) (citation omitted) (“[A]lthough a defendant may not

be compelled to stand trial in identifiable prison garb, a defendant has no right under state

or federal law to be provided with any particular type of civilian clothing.”); Adams v. Smith,

280 F. Supp. 2d 704, 718 (E.D. Mich. 2003). Because Petitioner was not compelled to

stand before the jury in clearly-identifiable prison clothing, he cannot show that he was

denied a fair trial. Habeas relief is not warranted on this claim.

E. Evidentiary Hearing Claim

Lastly, Petitioner asserts that he is entitled to habeas relief because the state courts

ruled upon his ineffective assistance of trial counsel claims without conducting an

evidentiary hearing. Respondent contends that this claim is not cognizable upon habeas

review and lacks merit.

This Court agrees with Respondent. Such a claim is based upon state law and

does not justify relief in federal court. See Hayes v. Prelesnik, 193 F. App’x 577, 584 (6th

Cir. 2006) (citation omitted). A state court’s alleged failure to properly apply state law or

its own procedural rules, even if well-established, is not cognizable on federal habeas

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review. This Court’s power to grant a writ of habeas corpus only extends to errors in the

application of federal law. See, e.g., Estelle, 502 U.S. at 67-68. There is also no

clearly-established Supreme Court law which recognizes a constitutional right to an

evidentiary hearing on state post-conviction review to develop issues. Hayes, 193 F.

App’x at 584; Davis v. Ludwick, No. 10-CV-11240, 2013 WL 1212833, *18 (E.D. Mich.

March 25, 2013) (denying habeas relief on similar evidentiary hearing claim); Hall v.

Berghuis, No. 07-12163, 2009 WL 2244793, *9 (E.D. Mich. July 27, 2009) (same).

Moreover, Petitioner is not entitled to an evidentiary hearing on his ineffective

assistance of trial counsel claims on federal habeas review because the Michigan Court

of Appeals issued a decision on the merits of his claims. Cullen, 563 U.S. at 181-82;

Ballinger v. Prelesnik, 709 F.3d 558, 561-62 (6th Cir. 2013) (confirming that federal courts

are precluded from conducting evidentiary hearings when the state courts have ruled on

the merits of an issue). Consequently, Petitioner fails to state a claim upon which habeas

relief may be granted as to this issue. Habeas relief is not warranted on this claim.

V. Conclusion

For the reasons stated, the Court concludes that Petitioner is not entitled to federal

habeas relief on his claims. Accordingly, the Court DENIES and DISMISSES WITH

PREJUDICE the petition for a writ of habeas corpus.

Before Petitioner may appeal the Court’s decision, a certificate of appealability must

issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability

may issue only if the petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When a federal court denies relief on the

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merits, the substantial showing threshold is met if the petitioner demonstrates that

reasonable jurists would find the court’s assessment of the constitutional claim debatable

or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this

standard by demonstrating that . . . jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.

322, 327 (2003). Petitioner makes no such showing. Accordingly, the Court DENIES a

certificate of appealability. The Court also DENIES leave to proceed in forma pauperis on

appeal as an appeal cannot be taken in good faith. See FED. R. APP. P. 24(a).

SO ORDERED. 

Dated: May 31, 2017 /s/Gershwin A. Drain 

GERSHWIN A. DRAIN 

United States District Judge 

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

May 31, 2017, by electronic and/or ordinary mail.

/s/ Felicia Moses for Tanya Bankston

Case Manager

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