UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

_____________________________________________________________________

DAVID TYLER MONTALDI, 

Petitioner,

v. Case No. 15-cv-12452

DUNCAN MACLAREN,

Respondent.

________________________________/

OPINION AND ORDER DENYING THE INITIAL AND

SUPPLEMENTAL HABEAS CORPUS PETITIONS AND

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner David Tyler Montaldi, acting through counsel, brings this habeas 

corpus action under 28 U.S.C. § 2254. (ECF Nos. 1, 12.) He challenges his Michigan 

convictions for two counts of criminal sexual conduct (CSC) in the first-degree, see 

Mich. Comp. Laws § 750.520b(1)(a) (sexual penetration of a person under the age of 

thirteen), and one count of first-degree child abuse, see Mich. Comp. Laws §

750.136b(2) (serious physical or mental harm to a child). He claims that: (1) there was 

insufficient evidence that he sexually penetrated the complainant; (2) he was denied a 

fair trial when the prosecution's expert witnesses opined that the complainant had been 

abused, and trial counsel was ineffective for failing to object to the testimony; (3) his trial 

attorney deprived him of effective assistance by failing to investigate and present a 

substantial defense; (4) the prosecutor used improper and falsified testimony and made 

improper comments to the jury during opening statements and closing arguments; (5)

he was deprived of his right to counsel by trial counsel's failure to interview prosecution 

witnesses before trial; (6) trial counsel was ineffective for failing to (a) furnish testimonial 

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evidence or an expert opinion, (b) search for more than one pro-prosecution witness, 

and (c) consult a potential expert witness without providing the person with any

materials; (7) trial counsel was ineffective for failing to object to, or challenge, voice 

recordings; (8) the prosecutor violated Petitioner’s right to remain silent and not to 

testify; and (9) his appellate attorney on direct appeal was ineffective for failing to raise 

all his claims on appeal. (ECF No. 1, PageID.3; ECF No. 12, PageID.122-61.)

Respondent Duncan Maclaren, through the Michigan Attorney General, urges the 

court to deny relief on grounds that: the state court's rejection of Petitioner’s first three 

claims was not objectively unreasonable; Petitioner's fourth, fifth, seventh, and eighth 

claims are procedurally defaulted; and Petitioner’s sixth claim fails on the merits. (ECF 

No. 17, PageID.3704-07). Having reviewed the pleadings and state-court record, the 

court agrees with Respondent that Petitioner is not entitled to relief. Accordingly, the 

court will deny the initial and supplemental habeas petitions.

I. BACKGROUND

A. The Charges, Trial, and Sentence

The charges against Petitioner arose from allegations that he physically and 

sexually abused his girlfriend's thirteen-month-old daughter, whom the court will refer to 

as "the complainant" or "the child." Petitioner's first trial ended in a mistrial because the 

jury was unable to reach a verdict. See 1/31/12 Trial Tr. (ECF No. 16-13, 

PageID.1457). The prosecution then re-tried Petitioner. The Michigan Court of Appeals 

summarized the evidence at Petitioner’s second trial as follows: 

Defendant was babysitting his girlfriend's 13–month old daughter when the 

child suffered the following injuries: (1) four skull fractures (one in the front, 

one in the back, and one on each side of her head), (2) subdural brain 

hemorrhaging with hematomas in at least two locations, (3) sheering injuries 

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to her brain, including of the tissue that connects the two halves of the brain 

together, (4) severe hemorrhaging in the three layers of her retinas in both 

eyes, (5) bruising across the entire length of her forehead, (6) a large

abrasion on her chin, (7) a bruise under her chin, on the left side of her neck, 

(8) a complete tear of the labial frenulum (the tissue that connects the lip to 

the gum line), (9) a fractured left wrist, (10) a strained cervical ligament (it 

runs from the base of the skull to the base of the spine), (11) a bright red 

pronounced bruise on her left buttock, (12) two lacerations on her hymen, 

and two tears on her anus. Medical experts in child abuse testified that: (a)

skull fractures are caused by blunt force trauma; (b) brain hemorrhaging, 

sheering brain injuries, and retinal hemorrhaging (particularly in all three 

layers of the retina) are caused by rapid acceleration/deceleration motions, 

including shaking back and forth; (c) a torn labial frenulum is usually caused 

from something being shoved in the mouth; and (d) a cervical ligament 

strain is usually caused by severe whiplash. 

According to the evidence, defendant was the only person with the child at 

the time the child suffered these injuries at his house. Defendant did not 

call for emergency medical assistance after the child suffered these injuries, 

although she was having difficulty breathing and he had to give her "rescue 

breaths." Instead, defendant called the child's mother at work and told her 

to come over. When the child's mother arrived and saw the child, she called 

911 immediately. The child was first taken to Mt. Clemens General Hospital 

where she was placed on a respirator. The child was then transferred to St. 

John's (sic) Children's Hospital for extensive medical treatment and care. 

Defendant first told police that, while he was in the bathroom for ten or 

fifteen minutes, the child fell off the couch and his 200 pound dog sat on the 

child. Later defendant told his father in a recorded telephone call that he 

dropped the child down a flight of eight stairs and his dog fell down the stairs 

at the same time.

People v. Montaldi, No. 312276, 2014 WL 265525, at *1 (Mich. Ct. App. Jan. 23, 2014).

On July 26, 2012, the jury found Petitioner guilty, as charged, of two counts of 

first-degree CSC and one count of first-degree child abuse. See 7/26/12 Trial Tr. (ECF 

No. 16-21, PageID.2721-22). On August 28, 2012, the trial court sentenced Petitioner 

to two concurrent terms of 25 to 50 years in prison for the CSC convictions and a 

consecutive term of 86 to 180 months (6 years, 2 months to 15 years) for the childabuse conviction. See 8/28/12 Sentence Tr. (ECF No. 16-22, PageID.2745-47).

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B. The Direct Appeal

In an appeal of right to the Michigan Court of Appeals, Petitioner argued through 

counsel that: (1) his CSC convictions should be vacated because there was insufficient 

evidence that he sexually penetrated the complainant; (2) the prosecution’s expert 

witnesses improperly stated their medical opinions that the complainant had been 

physical abused, and trial counsel was constitutionally ineffective for failing to object; 

and (3) his trial attorney’s failure to investigate and present a substantial defense denied 

him the right to effective assistance of counsel. See Defendant-Appellant's Brief on 

Appeal, p. ii (ECF No. 16-23, PageID.2777). 

In a pro se supplemental brief, Petitioner raised the following claims: (4) he was 

entitled to a new trial due to the prosecutor's prodigious use of improper and falsified 

testimony and her improper comments to the jury during opening and closing 

arguments; (5) he was denied effective assistance by counsel's failure to properly 

investigate and provide an adequate defense; and (6) there was insufficient evidence to 

support his three convictions, and the cumulative effect of errors denied him a fair trial. 

See Appellant's Suppl. Brief on Appeal (ECF No. 16-23, PageID.3002-03). The 

Michigan Court of Appeals rejected Petitioner's claims in an unpublished, per curiam

opinion. See Montaldi, 2014 WL 265525. 

Petitioner raised the same claims in an application for leave to appeal in the 

Michigan Supreme Court. See Pro Per Appl. for Leave to Appeal (ECF No. 16-24, 

PageID.3212-18). He also raised a few new issues, including a claim that the 

prosecutor commented on the competency and materiality of the witnesses' opinion 

testimony, vouched for witnesses, relied on opinion evidence, stated that was unlikely 

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the events occurred as reported by Petitioner, shifted the burden of proof, asked leading 

questions, and elicited hearsay and opinion testimony. Petitioner also alleged that 

appellate counsel was ineffective for failing to raise or preserve all of Petitioner's claims

in the appeal of right. (Id. at PageID.3219-22). On June 24, 2014, the Michigan 

Supreme Court denied leave to appeal because it was not persuaded to review the 

questions presented to it. See People v. Montaldi, 847 N.W.2d 508 (Mich. 2014). 

C. The Initial Habeas Petition and State Collateral Review

On July 9, 2015, Petitioner filed his initial habeas corpus petition, raising the first 

four claims that he presented to the Michigan Court of Appeals in the appeal of right. 

As noted above, those claims alleged that: (1) there was insufficient evidence that he 

sexually penetrated the complainant; (2) the prosecution's expert witnesses improperly 

stated their medical opinions that the complainant was physically abused, and trial 

counsel was ineffective for failing to object; (3) trial counsel was ineffective for failing to 

investigate and present a substantial defense; and (4) the prosecutor used improper

and falsified testimony and made improper comments to the jury. See Pet. (ECF No. 1, 

PageID.3-4). 

Several weeks after filing his habeas petition, Petitioner moved for a stay of the 

federal proceeding so that he could exhaust state remedies for newly discovered 

claims. See Petitioner's Mot. for Stay and Abeyance (ECF No. 6). On September 10, 

2015, the court granted Petitioner's motion for a stay and administratively closed this 

case. See Order (ECF No. 8).

Petitioner then filed a motion for relief from judgment in the state trial court. He 

argued that his Fifth Amendment right to remain silent was violated when the prosecutor 

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stated that Petitioner was protecting himself in the courtroom by refusing to tell anyone 

beside his father what had happened to the complainant. See Defendant-Appellant's 

Mot. for Relief from J. (ECF No. 16-26). Petitioner also filed a supplemental motion for 

relief from judgment in which he asserted that his trial attorney: (1) failed to conduct 

pretrial investigative interviews with the prosecution’s witnesses; (2) failed to furnish any 

testimonial evidence or expert opinion, failed to search for more than one qualified 

expert, and only cursorily and preliminarily consulted one expert; and (3) failed to object 

to, or challenge, the admission of voice recordings that contradicted his initial 

explanation of the events. Petitioner also claimed that appellate counsel was cause for 

his failure to raise his new issues on direct appeal. See Defendant-Appellant's Suppl.

Mot. for Relief from J. (ECF No. 16-29).

On February 1, 2017, the state trial court denied Petitioner's motion for relief from 

judgment. The trial court determined that some of the issues were decided against 

Petitioner on direct appeal and that Petitioner had failed to show "cause" for not raising 

the other claims on appeal and actual prejudice or a significant possibility that he was 

innocent. See Op. and Order (Macomb Cty Cir. Ct. Feb. 1, 2017); (ECF No. 16-31).

Petitioner appealed the trial court's decision, raising only the claims about trial 

and appellate counsel. The Michigan Court of Appeals denied leave to appeal because 

Petitioner had failed to establish that the trial court erred in denying his motion for relief 

from judgment. See People v. Montaldi, No. 339384 (Mich. Ct. App. Dec. 21, 2017). 

On November 7, 2018, the Michigan Supreme Court denied leave to appeal because 

Petitioner had failed to establish entitlement to relief under Michigan Court Rule 

6.508(D). See People v. Montaldi, 919 N.W.2d 271 (Mich. 2018). 

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D. The Supplemental Habeas Petition

In 2018, Petitioner filed a supplemental petition for the writ of habeas corpus and 

a motion to re-open this case. See Petitioner's Suppl. Pet. and Mot. to Reopen Habeas 

Proceedings (ECF No. 12). The supplemental petition raises claims about Petitioner's 

trial and appellate attorneys and the prosecutor's alleged violation of Petitioner's right to 

remain silent. On September 26, 2018, the court granted Petitioner's motion to re-open 

his case and set briefing deadlines. See Order (ECF No. 13). Respondent then filed an 

answer in opposition to the petitions (ECF No. 17), and Petitioner filed a reply brief 

(ECF No. 26). 

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires 

prisoners who challenge "a matter 'adjudicated on the merits in State court' to show that 

the relevant state court 'decision' (1) 'was contrary to, or involved an unreasonable 

application of, clearly established Federal law,' or (2) 'was based on an unreasonable 

determination of the facts in light of the evidence presented in the State court 

proceeding.'" Wilson v. Sellers, 138 S. Ct. 1188, 1191 (2018) (quoting 28 U.S.C. § 

2254(d)). The Supreme Court has explained that

a state court decision is "contrary to [the Supreme Court's] clearly 

established precedent if the state court applies a rule that contradicts the 

governing law set forth in [Supreme Court] cases" or "if the state court 

confronts a set of facts that are materially indistinguishable from a decision 

of [the Supreme] Court and nevertheless arrives at a result different from 

[Supreme Court] precedent."

Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362,

405-406 (2000)) (alterations added). 

"Under the 'unreasonable application' clause, a federal habeas court may 

grant the writ if the state court identifies the correct governing legal principle 

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from [the Supreme] Court's decisions but unreasonably applies that 

principle to the facts of the prisoner's case." Id., at 413, 120 S.Ct. 1495. 

The "unreasonable application" clause requires the state court decision to 

be more than incorrect or erroneous. Id., at 410, 412, 120 S.Ct. 1495. The 

state court's application of clearly established law must be objectively 

unreasonable. Id., at 409, 120 S.Ct. 1495. 

Id. at 75. 

"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) (internal and end citations omitted). “A state 

court's determination that a claim lacks merit precludes federal habeas relief so long as 

'fairminded jurists could disagree' on the correctness of the state court's decision." 

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 

U.S. 652, 664 (2004)). 

III. THE CLAIMS RAISED ON DIRECT REVIEW

A. Sufficiency of the Evidence

Petitioner alleges that his convictions for first-degree CSC must be vacated 

because there was insufficient evidence that he sexually penetrated the complainant’s 

anus and vagina. He admits that there was evidence of genital and anal penetration, 

but he claims there was no evidence beyond a reasonable doubt that he penetrated the 

complainant. He argues that the verdict was based on inferences which were not 

logically connected and that the jury was required to guess and make conclusions about 

his culpability. See Pet. (ECF No. 1, PageID.3); Defendant-Appellant's Brief on Appeal 

(ECF No. 16-23, PageID.2788-90).

The Michigan Court of Appeals addressed Petitioner's claim on direct appeal. It 

found no merit in Petitioner's claims and concluded that the "circumstantial evidence 

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and the reasonable inferences arising from the evidence were sufficient for the jury to 

conclude beyond a reasonable doubt that defendant was the person who penetrated the 

child's genital and anal openings." Montaldi, 2014 WL 265525, at *2.

1. Clearly Established Federal Law

It is well established that "the Due Process Clause [of the Fourteenth 

Amendment] protects the accused against conviction except upon proof beyond a 

reasonable doubt of every fact necessary to constitute the crime with which he is 

charged." In re Winship, 397 U.S. 358, 364 (1970). The critical inquiry on review of a 

challenge to the sufficiency of the evidence supporting a criminal conviction "is whether, 

after viewing the evidence in the light most favorable to the prosecution, any rational 

trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). 

"[R]eview of a state-court conviction for sufficiency of the evidence is very 

limited" because federal habeas courts "give two layers of deference to state-court 

convictions." Thomas v. Stephenson, 898 F.3d 693, 698 (6th Cir. 2018). First, "it is the 

responsibility of the jury—not the court—to decide what conclusions should be drawn 

from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the 

ground of insufficient evidence only if no rational trier of fact could have agreed with the 

jury." Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam opinion quoting 

Cavazos v. Smith, 565 U.S. 1, 2 (2011)). 

Second, on habeas review, a federal court may overturn a state court decision 

rejecting a sufficiency of the evidence challenge "only if the state court decision was 

'objectively unreasonable.' " Id. (quoting Smith, 565 U.S. at 2) (quoting Renico, 559 

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U.S. at 733); see also Tanner v. Yukins, 867 F.3d 661, 672 (6th Cir. 2017) (stating that 

"two layers of deference apply [to a sufficiency-of-the-evidence claim], one to the jury 

verdict, and one to the state appellate court"). 

2. Application of the Law

The Jackson "standard must be applied with explicit reference to the substantive 

elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 

n.16. Petitioner was charged with violating Mich. Comp. Laws § 750.520b(1)(a), which 

states that "[a] person is guilty of criminal sexual conduct in the first degree if he or she 

engages in sexual penetration with another person and . . . [t]hat other person is under 

13 years of age." 

The statute simply requires proof of sexual penetration with a minor under 13 

years of age; the defendant's intent is not an element. People v. Gonzales, No. 328060, 

2016 WL 7607827, at *6 (Mich. Ct. App. Dec. 29, 2016) (unpublished). The term 

"sexual penetration" is defined in the statute as "sexual intercourse, cunnilingus, fellatio, 

anal intercourse, or any other intrusion, however slight, of any part of a person's body or 

of any object into the genital or anal openings of another person's body." Mich. Comp. 

Laws § 750.520a(r).

In the present case, the complainant's age was not disputed, and there were no 

witnesses to the crime. Nevertheless, as the Michigan Court of Appeals pointed out:

the evidence established that defendant was the only person home with this 

child when she suffered numerous and life-threatening injuries to several 

parts of her body that were inconsistent with defendant's changing 

explanations for how the injuries occurred. Further, the medical expert 

testimony indicated that the specific injuries the child suffered—including

multiple skull fractures, subdural hematomas, sheering injuries, massive 

retinal hemorrhaging, facial and neck bruising, a strained cervical ligament, 

a torn frenulum, and bright red bruising on the buttocks—were not 

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consistent with a 200–pound dog sitting on the child or with the child 

tumbling down an eight-step stairway with a dog as defendant claimed.

Montaldi, 2014 WL 265525, at *2.

One physician opined that "the child's hymen (which is an internal structure) and

anal lacerations were not consistent with defecation or cleaning actions as defendant 

had claimed; rather, they were consistent with penetration." Id.; see also 7/24/12 Trial 

Tr. at pp.176-77 (ECF No. 16-19, PageID.2409-10) (Dr. Mary Lou Angelelli's testimony);

7/25/12 Trial Tr. at pp. 46-50 (ECF No. 16-20, PageID.2486-90) (Dr. Marcus McGraw's 

testimony). Physical evidence in Petitioner's home, including the child's blood and a 

child's wet "hoodie" in the bathroom, also tended to implicate Petitioner because, during 

the investigation of the case, he denied taking the baby in the bathroom. See Montaldi, 

2014 WL 265525, at *2.

A rational trier of fact could have concluded from the physical evidence in 

Petitioner's home, his inconsistent explanations for the child's injuries, and the expert 

witnesses' testimony, that Petitioner sexually penetrated the complainant. Further, the 

state appellate court's conclusion – that the circumstantial evidence and reasonable 

inferences from the evidence were sufficient proof that Petitioner penetrated the child –

was objectively reasonable. "[E]ven a strong case for relief does not mean the state 

court's contrary conclusion was unreasonable." Richter, 562 U.S. at 102. 

 Although Petitioner maintains that the jury's verdict was based on illogical 

inferences and speculative conclusions, a federal habeas court does "not reweigh the 

evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for that of 

the jury." Tanner, 867 F.3d at 672. The court "gives the prosecution the benefit of all 

reasonable inferences from the testimony," United States v. Abboud, 438 F.3d 554, 589 

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(6th Cir. 2006), and the reasonable inferences in Petitioner's criminal case were that he 

penetrated the child's genitals. He has no right to relief on his challenge to the 

sufficiency of the evidence.

B. The Expert Witnesses’ Testimony and Counsel’s Failure to Object

The second habeas claim concerns opinions expressed by two of the 

prosecution's expert witnesses. Pediatrician Mary Lou Angelelli, for example, testified 

that: bleeding in the complainant's subdural space and retinal area was "abusive head 

trauma," see 7/24/12 Trial Tr. at pp. 166-67 (ECF No. 16-19, PageID.2399-2400); the 

laceration to the child's anus was suspicious for sexual abuse, id. at p. 179, 

PageID.2412; the child's frenulum injury was "a common injury in abuse of infants, and . 

. is highly specific for abuse which means that most of the babies who have that injury 

have been abused," id. at pp. 181-82, PageID.2414-15; and the injuries which she saw 

were the result of child abuse, id. at pp. 201-02, PageID.2434-35. 

A second pediatrician, Dr. Marcus DeGraw, testified that the child "suffered 

multiple forms of traumatic impact" and that, "without an appropriate explanation, those 

were . . . forms of physical child abuse." See 7/25/12 Trial Tr. at p. 62 (ECF No. 16-20, 

PageID.2502). Dr. DeGraw also opined that injuries to the child's vaginal and anal 

areas were inflicted and not caused by a fall down the stairs with the dog, id. at p. 63, 

PageID.2503, and the injuries to the anus came from a penetrating act, id. at pp. 89-90, 

PageID.2529-30. 

Petitioner contends that the two doctors' testimony violated his right to due 

process and Michigan law on opinion testimony. He also contends that trial counsel 

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was ineffective for failing to object to the testimony. See Pet. (ECF No. 1, PageID.3); 

Defendant-Appellant's Brief on Appeal (ECF No. 16-23, PageID.2791-95). 

The Michigan Court of Appeals disagreed with Petitioner. It determined that the 

expert testimony was proper and that defense counsel was not ineffective for failing to 

object because an objection to the evidence would have been futile. See Montaldi, 

2014 WL 265525, at *3. 

1. Legal Framework

Federal habeas courts usually do not question errors in the application of state 

law, especially rulings on the admission of evidence. Cooper v. Sowders, 837 F.2d 284, 

286 (6th Cir. 1988). "[S]tates have wide latitude with regard to evidentiary matters 

under the Due Process Clause," Wilson v. Sheldon, 874 F.3d 470, 476 (6th Cir. 2017), 

and "to the extent that any testimony and comments violated Michigan's rules of 

evidence, such errors are not cognizable on federal habeas review." Hall v. Vasbinder, 

563 F.3d 222, 239 (6th Cir. 2009). 

An evidentiary error does not rise to the level of a federal constitutional claim 

warranting habeas corpus relief unless the error rendered the proceeding fundamentally 

unfair. McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004). The state court's 

interpretation of state law, moreover, binds this court sitting in habeas corpus. 

Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

To prevail on his claim about trial counsel, Petitioner must show that "counsel's 

performance was deficient," and that "the deficient performance prejudiced the 

defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney's 

performance is deficient if "counsel's representation fell below an objective standard of 

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reasonableness." Id. at 688. The defendant must show "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 of the Strickland test "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. The defendant must show "a reasonable probability that, but for counsel's 

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

694. "This does not require a showing that counsel's actions 'more likely than not 

altered the outcome,' " but "[t]he likelihood of a different result must be substantial, not 

just conceivable." Richter, 562 U.S. at 111-12 (quoting Strickland, 466 U.S. at 693). In 

a habeas case, review of an ineffective-assistance-of-counsel claim

is "doubly deferential," Cullen v. Pinholster, 563 U.S. 170, 190, 131 S.Ct. 

1388, 179 L.Ed.2d 557 (2011), because counsel is "strongly presumed to 

have rendered adequate assistance and made all significant decisions in 

the exercise of reasonable professional judgment," Burt v. Titlow, 571 U.S. 

––––, ––––, 134 S.Ct. 10, 17, 187 L.Ed.2d 348 (2013) (quoting Strickland 

v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

internal quotation marks omitted). In such circumstances, federal courts 

are to afford "both the state court and the defense attorney the benefit of 

the doubt." Burt, supra, supra, at ––––, 134 S.Ct., at 13.

Woods v. Etherton, 578 U.S. 113, __, 136 S. Ct. 1149, 1151 (2016) (per curiam). 

"When § 2254(d) applies, the question is . . . whether there is any reasonable argument 

that counsel satisfied Strickland's deferential standard." Richter, 562 U.S. at 105. 

2. Application

The Michigan Court of Appeals distinguished Petitioner's case from the statecourt decisions on which he relied by pointing out that the child did not testify and that 

his case was not a credibility contest between him and the child. The Court of Appeals 

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also noted that the purpose of the expert testimony was to describe the child's physical 

injuries in detail, "not to explain the child's post-incident behavior as compared to certain 

behavioral characteristics recognizable in child sexual abuse victims." Montaldi, 2014 

WL 265525, at *3. Finally, the Court of Appeals noted that the expert witnesses did not 

testify that Petitioner physically abused the child. 

Petitioner's reliance on the Sixth Circuit's decision in Cooper also does not help 

him. Although the Sixth Circuit granted habeas relief in Cooper, that case involved a 

detective who testified that he had found no evidence linking certain other suspects to 

the crime and that the only evidence which linked anyone to the crime was the 

defendant. See Cooper, 837 F.2d at 287. Drs. Angelelli and DeGraw did not testify that 

Petitioner was guilty of physically abusing the complainant or that all the evidence 

pointed to him and only him. Thus, their testimony was not impermissible opinion 

testimony. 

Furthermore, the trial court instructed the jurors that they did not have to believe 

an expert's opinion and that it was up to them to decide whether they believed the 

testimony and how important they thought it was. The court then stated that, when 

deciding whether to believe an expert's opinion, the jurors should think carefully about 

the reasons for the expert's opinion, the facts, whether the expert's opinion made sense, 

and the other evidence in the case. See 7/26/12 Trial Tr. at p. 96 (ECF No. 16-21, 

PageID.2712). 

For all these reasons, the alleged evidentiary error did not violate Petitioner's 

right to due process, the state court's decision was objectively reasonable, and defense 

counsel satisfied Strickland's deferential standard. 

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C. Ineffective Assistance and the Alleged Failure to Investigate

The third habeas claim alleges that trial counsel deprived Petitioner of a fair trial 

and effective assistance by failing to investigate and present a substantial defense. 

According to Petitioner, trial counsel failed to (1) contact and call lay witnesses to testify 

about his good character, (2) call expert medical witnesses to rebut the testimony of the 

prosecution's expert witnesses, (3) exercise the rule of completeness, and (4) properly 

cross-examine police witnesses regarding the incomplete investigation and collection of 

evidence from Petitioner's home. See Pet. (ECF No. 1, PageID.3); DefendantAppellant's Brief on Appeal (ECF No. 16-23, PageID.2796-99). The Michigan Court of 

Appeals disagreed with Petitioner's arguments and found no merit in his claim. 

1. Strickland

As noted above, to prevail on a claim "that counsel's assistance was so defective 

as to require reversal of a conviction," the defendant "must show that counsel's 

performance was deficient" and "that the deficient performance prejudiced the defense." 

Strickland, 466 U.S. at 687. "[T]he proper standard for attorney performance is that of 

reasonably effective assistance." Id. "[T]he defendant must show that counsel's 

representation fell below an objective standard of reasonableness." Id. at 688. To 

establish prejudice, the defendant must show "a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been different." 

Id. at 694. 

"Judicial scrutiny of counsel's performance must be highly deferential," and every 

effort must "be made to eliminate the distorting effects of hindsight, to reconstruct the 

circumstances of counsel's challenged conduct, and to evaluate the conduct from 

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counsel's perspective at the time." Id. at 689. "There are countless ways to provide 

effective assistance in any given case[,]" and "a court deciding an actual ineffectiveness 

claim must judge the reasonableness of counsel's challenged conduct on the facts of 

the particular case, viewed as of the time of counsel's conduct." Id. at 689-90. On 

habeas review, the Supreme Court's cases require federal courts to "use a ' doubly 

deferential' standard of review that gives both the state court and the defense attorney 

the benefit of the doubt." Titlow, 571 U.S. at 15. 

2. Application of Strickland

a. The Failure to Call Witnesses

Petitioner alleges that his trial attorney should have called witnesses on his 

behalf. Defense attorneys have certain basic duties, including the "duty to advocate the 

defendant's cause," Strickland, 466 U.S. at 688, and the "duty to make reasonable 

investigations or to make a reasonable decision that makes particular investigations 

unnecessary," id. at 691. The duty to investigate "includes the obligation to investigate 

all witnesses who may have information concerning his or her client’s guilt or 

innocence." Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). 

But "[i]n any ineffectiveness case, a particular decision not to investigate must be 

directly assessed for reasonableness in all the circumstances, applying a heavy 

measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. "[C]ounsel 

may exercise his professional judgment with respect to the viability of certain defenses 

and evidentiary matters without running afoul of the Sixth Amendment." Lewis v. 

Alexander, 11 F.3d 1349, 1353–54 (6th Cir. 1993).

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i. Character Witnesses

Petitioner alleges that trial counsel should have produced lay witnesses to testify 

about his good character. In an affidavit that Petitioner presented to the Michigan Court 

of Appeals on direct review, he averred that he arranged to have character witnesses 

travel to Michigan from outside the state, that his attorney was aware of the witnesses, 

and that the witnesses were never called. See Aff. in Support of Motion (ECF No. 16-

23, PageID.2812, ¶ B). However, he did not identify the witnesses; nor did he explain 

what the witnesses would have said had defense counsel produced them at trial. The 

Michigan Court of Appeals, therefore, reasonably concluded that defense counsel's 

failure to call character witnesses did not deprive Petitioner of a substantial defense. 

This court agrees and concludes that defense counsel's failure to produce character 

witnesses did not fall below an objective standard of reasonableness. 

ii. Defense Expert Witness

 Petitioner claims that his attorney should have produced an expert medical 

witness who could have testified about head injuries caused by stairway falls. To 

support this argument Petitioner attached to his state appellate brief an article that was 

published in the Journal of Forensic Sciences. See App. to Defendant-Appellant's Brief 

on Appeal (ECF No. 16-23, PageID.2805-10) (Patrick E. Lantz and Daniel E. Couture, 

M.D., Fatal Acute Intercranial Injury, Subdural Hematoma, and Retinal Hemorrhages 

Caused by Stairway Fall, Journal of Forensic Sciences, November 2011). The 

introductory abstract for the article states that the report "contradicts the prevalent belief 

of many physicians dealing with suspected child abuse that low-height falls by young 

children are without exception benign occurrences and cannot cause fatal intracranial 

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injuries and severe retinal hemorrhages." Id. at PageID.2805. In the concluding 

paragraph, however, the authors admit that "[m]ost childhood stairway and low-level 

falls do not cause serious head injuries," and that the published reports cited in their 

article "are discordant and controversial, making the correct classification of a young 

child's death following a reported short fall a diagnostic challenge." See id., 

PageID.2809.

The article also does not identify the other injuries which the complainant 

suffered from a possible fall, and Petitioner has not identified an expert witness who

would have been willing and able to testify for him on that subject. The Court of 

Appeals, therefore, reasonably concluded that Petitioner was not deprived of a 

substantial defense by counsel's failure to present expert medical testimony on injuries 

caused by falling down some stairs.

Strickland, moreover, "specifically commands that a court 'must indulge [the] 

strong presumption' that counsel 'made all significant decisions in the exercise of 

reasonable professional judgment.' " Pinholster, 563 U.S. at 196 (quoting Strickland, 

466 U.S. at 689-90). The court also must "presume that decisions of what evidence to 

present and whether to call or question witnesses are matters of trial strategy." Cathron 

v. Jones, 77 F. App'x 835, 841 (6th Cir. 2003) (citing Hutchison v. Bell, 303 F.3d 720, 

749 (6th Cir. 2002)). 

For all the foregoing reasons, trial counsel's failure to produce an expert witness 

on stairway falls did not amount to constitutionally ineffective assistance, and the state 

court's rejection of Petitioner's claim was not unreasonable. Petitioner has no right to 

relief on his claim. 

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b. The Rule of Completeness

Petitioner alleges next that trial counsel failed to exercise the rule of completeness 

found in Michigan Rule of Evidence 106. Rule 106 reads:

When a writing or recorded statement or part thereof is introduced by a 

party, an adverse party may require the introduction at that time of any other 

part or any other writing or recorded statement which ought in fairness to 

be considered contemporaneously with it. 

Petitioner argued in his pro se supplemental brief on appeal that trial counsel 

should have used Rule 106 to introduce recorded phone calls that he made to the 

child's mother immediately after the incident in question. Petitioner asserted that the

calls were exculpatory because they would have shown that, contrary to the 

prosecutor's argument, he intended to call the 911 operator and was not trying to cover 

up his guilt. He asserts that the recordings also would have shown that he panicked 

and was in a state of shock at the time, and that he decided to call the 911 operator 

after his mind cleared and the initial shock dissipated. 

Decisions about what evidence to present are presumed to be matters of trial 

strategy, Cathron, 77 F. App’x at 835, and the phone calls between Petitioner and the 

child's mother included Petitioner's initial explanation that the child was injured when his 

dog sat on her. See 7/20/12 Trial Tr. at p. 133 (ECF No. 16-18, PageID.2185). This 

explanation would have contradicted his defense at trial that the child was injured when 

he dropped her and she fell down some stairs. 

Further, as the Michigan Court of Appeals observed, "[c]ontrary to his claims, the 

recordings would have tended to establish that defendant had sufficient time, the 

physical ability, and the presence of mind to make several telephone calls to the child's 

mother instead of calling for emergency medical assistance for this grievously injured 

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child." Montaldi, 2014 WL 265525, at *5. The recordings also would have 

demonstrated that, "it was only after the child's mother left work, drove to defendant's 

home, and saw her seriously injured child that the child's mother, not defendant, called 

for emergency medical assistance, which significantly delayed medical treatment." Id.; 

see also 7/20/12 Trial Tr. at pp. 133-37 (ECF No. 16-18, PageID.2185-89). 

For all these reasons, trial counsel was not ineffective for failing to introduce 

recordings of the phone calls between Petitioner and the complainant's mother shortly 

after the alleged crimes. The Michigan Court of Appeals made an objectively 

reasonable conclusion that Petitioner's claim lacked merit, and Petitioner has no right to 

habeas relief on his claim.

c. The Cross-Examination of Police Witnesses

Petitioner asserts that trial counsel failed to properly cross-examine police 

officers regarding the investigation and collection of evidence from his home. In his pro 

se brief on appeal, Petitioner claimed that defense counsel should have objected to the 

admission of four pieces of evidence: a syringe, a bed sheet, a bottle of xylocaine, and 

a bottle of epinephrine. See Defendant's Suppl. Brief on Appeal (ECF No. 16-23, 

PageiD.3044-47). The Michigan Court of Appeals rejected Petitioner's argument 

because Petitioner failed to establish that an objection would have had merit and that,

but for the errors, the result of the proceedings would have been different. See 

Montaldi, 2014 WL 265525, at *6. 

"Courts generally entrust cross-examination techniques, like other matters 

of trial strategy, to the professional discretion of counsel." Henderson v. Norris, 118 

F.3d 1283, 1287 (8th Cir. 1997) (quoted with approval in Jackson v. Bradshaw, 681 

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F.3d 753, 765 (6th Cir. 2012)); see also Higgins v. Renico, 362 F. Supp. 2d 904, 916 

(E.D. Mich. 2005) ("As a general rule, trial counsel's strategic decisions on how the trial 

is to be conducted are afforded great deference."). 

Petitioner's claim fails for the additional reason that the disputed evidence did not 

prejudice his defense. One forensic scientist testified that there was no seminal fluid or 

sperm cells on the sheets, on the syringe, or on anything else that the expert examined. 

See 7/20/12 Trial Tr. at pp. 57-58, 65-68 (ECF No. 16-18, PageID.2109-10, 2117-20).

And as Petitioner himself pointed out on appeal, a different expert testified that no DNA 

was found on the bed sheet, see id. at p. 89, PageID.2141, and the child was excluded 

as a donor of DNA on the syringe, see id. at pp. 93-94, PageID.2145-46. In addition, 

according to the detective in charge of the case, there was no evidence that a needle 

was stuck in the child during the alleged crimes, and there was no evidence of xylocaine 

in her blood. See 7/25/12 Trial Tr. at pp. 159-60 (ECF No. 16-20, PageID.2599-2600). 

Petitioner has failed to show that defense counsel's cross-examination of 

prosecution witnesses was deficient performance and that the allegedly deficient 

performance prejudiced him. The Michigan Court of Appeals reasonably concluded that 

defense counsel's performance did not deprive Petitioner of a fair and reliable trial, and 

Petitioner has no right to habeas relief on his claim about counsel's cross-examination 

of witnesses. 

3. Summary

The Michigan Court of Appeals summarized its rulings on Petitioner's 

ineffectiveness claim by stating that Petitioner's "several arguments on appeal in 

support of his claim that he was denied the effective assistance of counsel, including 

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those made in his Standard 4 brief, are without merit." Montaldi, 2014 WL 265525, at * 

6. This conclusion was objectively reasonable for the reasons given above. And 

because both trial counsel's performance and the state court's decision are entitled to 

deference, the court declines to grant relief on Petitioner's third claim.

D. The Prosecutor

Petitioner's fourth claim alleges prosecutorial misconduct. Petitioner contends 

that the prosecutor used improper and falsified testimony and made improper 

comments to the jury during opening statements and closing arguments. See Pet. (ECF 

No. 1, PageID.3). Petitioner first raised this issue in his pro se supplemental brief on 

direct appeal, where he alleged that several witnesses, including law enforcement 

officers and medical professionals, gave testimony that contradicted their testimony 

from his first trial or gave testimony that defied the facts. See Appellant's Supplemental 

Brief on Appeal (ECF No. 16-23, PageID.3012-26). Petitioner also asserted that the 

prosecutor made improper, highly prejudicial remarks to the jury during her opening 

statement and closing argument. See id. at PageID.3026-31. 

The Michigan Court of Appeals reviewed this claim for "plain error" because 

Petitioner did not preserve the claim for appellate review by first raising the claim in the 

trial court. See Montaldi, 2014 WL 265525. at *6. Respondent, therefore, argues that 

Petitioner's claim is procedurally defaulted. The court agrees.

1. Procedural Default

In the habeas context, a procedural default is "a critical failure to comply with 

state procedural law." Trest v. Cain, 522 U.S. 87, 89 (1997). Pursuant to the related 

doctrine, "a federal court will not review the merits of [a state prisoner's] claims, 

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including constitutional claims, that a state court declined to hear because the prisoner 

failed to abide by a state procedural rule." Martinez v. Ryan, 566 U.S. 1, 9 (2012). In 

this Circuit, “[a] habeas petitioner procedurally defaults a claim when '(1) [he] fails to 

comply with a state procedural rule; (2) the state courts enforce the rule; [and] (3) the 

state procedural rule is an adequate and independent state ground for denying review 

of a federal constitutional claim.' " Theriot v. Vashaw, 982 F.3d 999, 1003 (6th Cir. 

2020) (quoting Wheeler v. Simpson, 852 F.3d 509, 514 (6th Cir. 2017) (quoting 

Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en banc)), cert. denied, 142 S. 

Ct. 482 (2021). 

The relevant state procedural rule here is "the general and longstanding rule in 

Michigan that 'issues that are not properly raised before a trial court cannot be raised on 

appeal absent compelling or extraordinary circumstances.' " People v. Cain, 869 

N.W.2d 829, 832 (Mich. 2015) (quoting People v. Grant, 520 N.W.2d 123, 128 (Mich. 

1994)). "[R]equiring a contemporaneous objection provides the trial court 'an 

opportunity to correct the error, which could thereby obviate the necessity of further 

legal proceedings and would be by far the best time to address a defendant's 

constitutional and nonconstitutional rights.' " People v. Carines, 597 N.W.2d 130, 139 

(Mich. 1999) (quoting Grant, 520 N.W.2d at 130). 

Petitioner admitted in his pro se brief on appeal that trial counsel did not raise the 

issue of the prosecutor's conduct in the trial court. See Appellant's Suppl. Brief on 

Appeal (ECF No. 16-23, PageID.3012). Thus, the first procedural default factor is 

satisfied.

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The Michigan Court of Appeals reviewed Petitioner's claim for "plain error" due to 

Petitioner' failure to preserve his claim for appeal by objecting in the trial court. A state 

court's plain-error review is considered such an impediment to merits review as to be 

enforcement of a procedural rule. Gibbs v. Huss, 12 F.4th 544, 550 (6th Cir. 2021) 

(citing Williams v. Burt, 949 F.3d 966, 973 (6th Cir.), cert. denied, 141 S. Ct. 276

(2020)); accord Theriot, 982 F.3d at 1004 (stating that "a state appellate court's review 

for plain error is enforcement of a procedural rule"); Hinkle v. Randle, 271 F.3d 239, 244 

(6th Cir. 2001) ("[W]e view a state appellate court's review for plain error as the 

enforcement of a procedural default."). The second procedural default factor is 

satisfied.

The third procedural default factor requires a determination of whether the state 

procedural rule is an adequate and independent state ground for denying review of a 

federal constitutional claim. The Sixth Circuit Court of Appeals has determined that 

"Michigan’s contemporaneous-objection rule 'constitutes an adequate and independent 

state ground for foreclosing federal review.' " Theriot, 982 F.3d at 1004 (citing Taylor v.

McKee, 649 F.3d 446, 451 (6th Cir. 2011)). Thus, the third procedural-default factor is 

satisfied. 

2. Cause and Prejudice; Miscarriage of Justice

"A state prisoner may overcome the prohibition on reviewing procedurally 

defaulted claims if he can show 'cause' to excuse his failure to comply with the state 

procedural rule and 'actual prejudice resulting from the alleged constitutional violation.' " 

Davila v. Davis, 137 S. Ct. 2058, 2064-2065 (2017) (quoting Wainwright v. Sykes, 433 

U.S. 72, 84 (1977)). Petitioner has not alleged "cause and prejudice" for his procedural 

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default. As such, he has abandoned any argument regarding cause and prejudice. 

Wheeler v. Simpson, 852 F.3d 509, 515 (6th Cir. 2017). 

In the absence of "cause and prejudice," a habeas petitioner may pursue 

procedurally defaulted claims if he can "demonstrate that failure to consider the claims 

will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S.

722, 750 (1991). "A fundamental miscarriage of justice results from the conviction of 

one who is 'actually innocent.' " Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) 

(citing Carrier, 477 U.S. at 496). "To be credible, [a claim of actual innocence] requires 

[the] petitioner to support his allegations of constitutional error with new reliable 

evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness 

accounts, or critical physical evidence – that was not presented at trial." Schlup v. Delo, 

513 U.S. 298, 324 (1995). 

Petitioner has not presented the court with any new and reliable evidence of 

actual innocence. Therefore, a fundamental miscarriage of justice will not result from 

this court's failure to adjudicate the substantive merits of Petitioner's fourth claim. That 

claim is procedurally defaulted. 

 IV. THE CLAIMS RAISED ON STATE COLLATERAL REVIEW

In his supplemental habeas petition, Petitioner raises the issues that he 

presented to the state trial court in his motion for relief from judgment and supplemental 

motion for relief from judgment. The state trial court rejected the claims because 

Petitioner previously raised, or could have raised, the claims on direct review. The 

State's appellate courts denied leave to appeal the trial court's decision. This court 

proceeds to review each of the claims in turn. 

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A. Constructive Denial of Counsel and Ineffective Assistance

Petitioner's fifth habeas claim alleges that his trial attorney provided ineffective

assistance because the attorney failed to interview any of the prosecution's witnesses 

before trial. As a result, Petitioner alleges, he was constructively denied his right to 

counsel and unable to subject the prosecution's case to any meaningful adversarial 

testing. See Supplemental Pet. (ECF No. 12, PageID.125-31). 

1. Procedural Default

Respondent argues that Petitioner's claim is procedurally defaulted because the 

state trial court wrote in its order denying Petitioner's motions for relief from judgment that, 

"[a]s to any issues that may not have been raised on appeal, the Court opines that 

defendant must show good cause for failing to raise them." Op. and Order at p. 4 

(Macomb Cty. Cir. Ct. Feb. 1, 2017); (ECF No. 16-31, PageID.3363). The trial court, 

however, did not specify which issues Petitioner could have been raised on appeal. 

 One could conclude through the process of elimination that Petitioner's fifth claim

was one of the claims that the trial court thought Petitioner could have raised on appeal, 

because the court mentioned certain other claims that the court thought Petitioner did 

raise on appeal. But Petitioner is correct that "a procedural default does not bar 

consideration of a federal claim on . . . habeas review unless the last state court 

rendering a judgment in the case 'clearly and expressly' states that its judgment rests on 

a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (quoting Caldwell v.

Mississippi, 472 U.S. 320, 327 (1985) (quoting Michigan v. Long, 463 U.S. 1032, 1040 

(1983)). Because the trial court did not clearly and expressly state that Petitioner could 

have raised his claim on direct appeal, this court declines to treat Petitioner's claim as 

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procedurally defaulted. The court's review is de novo, as no state court adjudicated the 

claim on the merits. 28 U.S.C. § 2254(d)(1); Phillips v. White, 851 F.3d 567, 575 (6th 

Cir. 2017). 

2. Cronic

As noted above, Petitioner asserts that he was constructively denied his right to 

counsel by counsel's failure to interview prosecution witnesses before trial. It is well 

established that a defense attorney's ineffectiveness can amount to no counsel at all, 

if "counsel entirely fails to subject the prosecution's case to meaningful 

adversarial testing." Bell v. Cone, 535 U.S. 685, 696, 122 S. Ct. 1843, 152 

L.Ed.2d 914 (2002) (quoting United States v. Cronic, 466 U.S. 648, 659, 

104 S. Ct. 2039, 80 L.Ed.2d 657 (1984)). But the presumption of prejudice 

applies only when there is a complete denial of counsel, Cronic, 466 U.S. 

at 659, 104 S. Ct. 2039, or when counsel entirely fails to subject the 

prosecution's case to adversarial testing, Bell, 535 U.S. at 696, 122 S. Ct. 

1843. A petitioner is not entitled to a presumption of prejudice because his 

counsel was deficient "at specific points" of the proceeding. Id. at 697, 122 

S. Ct. 1843.

Coleman v. Bradshaw, 974 F.3d 710, 720 n.4 (6th Cir. 2020) (emphases in original), cert. 

denied, 141 S. Ct. 2729 (2021). 

The record in this case does not support Petitioner's allegation that trial counsel 

failed to subject the prosecution's case to adversarial testing. The attorney represented 

Petitioner at Petitioner's first trial, and because that case ended in a mistrial, one can 

assume that defense counsel managed to convince at least one juror that the 

prosecution had not proved its case. 

At Petitioner's second trial, defense counsel participated in a lengthy voir dire 

proceeding, and he gave an opening statement in which he stressed the presumption of 

innocence and set forth Petitioner's defense: that Petitioner lost his grip on the child

when he slipped on a landing and that the child was injured as she tumbled down eight 

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steps to the basement. Defense counsel cross-examined all the prosecution witnesses, 

and he re-cross examined some of them. He also made a partial motion for a directed 

verdict of acquittal, he consulted with Petitioner regarding a jury instruction on a lesser 

charge and whether Petitioner should testify in his own defense, he opposed the 

prosecutor's request for a jury instruction on a lesser offense, and he made a closing 

argument. 

This summary of trial counsel's representation of Petitioner demonstrates that 

trial counsel subjected the prosecution's case to adversarial testing. Thus, prejudice 

cannot be presumed. The court is guided by the two-prong test set forth in Strickland: 

whether counsel's performance was deficient and whether the deficient performance 

prejudiced the defense. 

3. The Failure to Interview Prosecution Witnesses

Petitioner contends that trial counsel was ineffective for failing to interview any 

prosecution witnesses before trial. "There is, however, no per se rule that failure to 

interview witnesses constitutes ineffective assistance. Ineffective assistance cases turn 

on their individual facts." Sanders v. Trickey, 875 F.2d 205, 209 (8th Cir. 1989).

Trial counsel admitted in an affidavit dated January 21, 2016, that he did not 

interview any prosecution witnesses before either one of Petitioner's trials. He 

explained, however, that he had acquired information about the witnesses from law 

enforcement reports, medical reports, the testimony at Petitioner's preliminary 

examination, and for the second trial, the testimony offered at Petitioner's first trial.1 

1 All the witnesses at Petitioner's second trial also testified at Petitioner's first trial.

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See Defendant-Appellant's Appl. for Leave to Appeal, App. A (ECF No. 16-32, 

PageID.3453). 

Trial counsel was not ill prepared for trial, as Petitioner contends. The record, in 

fact, demonstrates that trial counsel was well prepared, capable of addressing all the 

evidence, and adept at cross-examining even the defense expert witnesses' testimony. 

Defense counsel's "overall performance indicates active and capable advocacy,"

Richter, 562 U.S. at 111, and Petitioner has failed to show a substantial probability that 

the result of the trial would have been different had trial counsel interviewed prosecution 

witnesses before trial. He is not entitled to relief on his claim.

B. Trial Counsel and the Lack of Expert Defense Witnesses

The sixth habeas claim concerns trial counsel's failure to use any defense 

experts when defending the charges against Petitioner. See Petitioner's Suppl. Pet. 

(ECF No. 12, PageID.131-48).

1. Dr. Stephen Guertin

Trial counsel did consult Dr. Stephen Guertin, an expert on child abuse. But he 

decided not to use Guertin as a witness because he thought Guertin's analysis and 

opinion would not help Petitioner's defense. See Defendant-Appellant's Appl. for Leave 

to Appeal, App. A, Aff. of Stephen T. Rabaut (ECF No. 16-32, PageID.3452). Dr. 

Guertin pointed out in a subsequent conversation with Petitioner's current attorney that 

trial counsel may have thought Guertin was as much of a risk to the defense as the 

prosecution's expert witnesses if the right questions were asked. See id., App. D., 

Transcript of Phone Interview with Dr. Stephen Guertin (ECF No. 16-32, PageID.3487). 

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Petitioner claims that trial counsel was ineffective for not providing Dr. Guertin

with any written materials to review. But Dr. Guertin stated in his conversation with 

Petitioner's current attorney that trial counsel had given him information in a narrative 

format and had advised him of the opinions of Drs. Angelelli and DeGraw. Id. at 

PageID.3485. 

Petitioner also contends that trial counsel consulted the wrong person because 

Dr. Guertin was a pro-prosecution witness. The label "pro-prosecution," is based on a 

description of Dr. Guertin as someone who "has worked with Prosecuting Attorneys and 

Police within the area in order to assure effective prosecution of those cases." See 

Defendant-Appellant's Appl. for Leave to Appeal, App. B, Excerpt from National Child 

Abuse Defense and Resource Center website (ECF No. 16-32, PageID.3455). 

However, the very next sentence in that brief description of Dr. Guertin states that "Dr. 

Guertin is as invested in proving that children have not been abused as he is in 

supporting those who have been." Id. 

Further, during Dr. Guertin's conversation with Petitioner's current attorney, 

Guertin stated that, in his 34-year career, he probably got called twice as much by 

prosecutors than defense attorneys, and that currently, he probably testified for the 

prosecution and for defense attorneys almost an even number of times. See id., App. 

D, Transcript of Phone Interview with Dr. Stephen Guertin (ECF No. 16-32, 

PageID.3489-90). And when asked if he had recommended any other experts to trial 

counsel, Dr. Guertin responded that he had not, but that "there are very, very few 

people who will actually look at [these] cases." Id. at PageID.3487-88. 

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Trial counsel exercised reasonable professional judgment when consulting Dr. 

Guertin, and his decision not to use Dr. Guertin as a witness appears to have been a 

strategic decision made after an investigation of the facts. "[S]trategic choices made 

after thorough investigation of law and facts relevant to plausible options are virtually 

unchallengeable[.]" Strickland, 466 U.S. at 690. Thus, Petitioner's claim about trial 

counsel's consultation with Dr. Guertin fails.

2. Dr. Werner U. Spitz

Petitioner argues that, if trial counsel had adequately investigated the case, he 

could have easily discovered Dr. Werner U. Spitz, who analyzed Petitioner’s case after 

trial and concluded that the child's injuries did not support a diagnosis of child abuse or 

sexual assault. In Dr. Spitz’ opinion, none of the child's injuries were deliberately 

inflicted, and Petitioner's initial explanation -- that his 200-pound dog sat on the child –

satisfactorily accounted for the child's injuries. See Defendant-Appellant's Appl. for 

Leave to Appeal, App. C, Op. Letter of Dr. Werner U. Spitz (ECF No. 16-32, 

PageID.3461-66). 

In his pro se brief on direct appeal, however, Petitioner described his initial 

explanation about the dog causing the injuries as "pathetic" and a "pathetic lie to cover 

up his failure to hold on to [the child]." See Appellant's Suppl. Brief on Appeal (ECF No. 

16-23, PageID.3034, 3041). Elsewhere in the same brief, he described his initial story 

about the dog sitting on the child as an "asinine lie." Id. at PageID.3040. 

The dog-did-it theory also contradicted Petitioner's explanation to his father: that 

he slipped on some golf balls and lost his grip on the child, who then fell down some 

steps. A recording of Petitioner's conversation with his father was played for the jury, 

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and because Petitioner himself apparently thought that his initial explanation for the 

child's injuries was untenable, counsel's failure to discover and consult Dr. Spitz did not 

prejudice the defense. Trial counsel chose instead to argue that Petitioner's initial 

explanation for the injuries was a lie, that Petitioner was not on trial for lying, and that 

the child fell down some stairs with the dog. This approach satisfied Strickland's 

deferential standard.

3. The Alternative Strategy

Although "[i]t can be assumed that in some cases counsel would be deemed 

ineffective for failing to consult or rely on experts," "[t]here are . . . 'countless ways to 

provide effective assistance in any given case.' " Richter, 562 U.S. at 106 (quoting 

Strickland, 466 U.S. at 689). "Rare are the situations in which the 'wide latitude counsel 

must have in making tactical decisions' will be limited to any one technique or 

approach." Id. (quoting Strickland, 466 U.S. at 689). 

The record in this case suggests that trial counsel made a tactical decision not to 

use a defense expert witness and to rely instead on his cross-examination of witnesses 

to establish a defense. For example, trial counsel managed to have registered nurse 

Gail Lippert admit that some of the child's blunt force injuries could have been caused 

by a fall, see 7/24/12 Trial Tr. at pp. 127-28 (ECF No. 16-19, PageID.2360-61), and that 

the anus can be penetrated in a way that is not sexual, id. at p. 129, PageID.2362. 

Trial counsel also used his cross-examination of Dr. Angelelli to support the 

defense theory. He elicited Dr. Angelelli's testimony that: the child's wrist fracture could 

have resulted from a fall, see id. at pp. 184-85, PageID.2417-18; falling on a metal strip 

of stairs could cause a head fracture, see pp. 188-90, PageID.2421-23; the injuries she 

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saw could have occurred from repeated impacts without shaking, id. at 191-92, 

PageID.2424-25; falling down a flight of stairs can cause more than one impact, id. at 

pp. 192-93, PageID.2425-26; and the bruising and redness around the child's anal 

opening could have been caused by somebody harshly wiping the anal area, id. at p.

196, PageID.2429. Trial counsel elicited additional testimony from Dr. Angelelli that: 

she could not say whether the child's anus had been penetrated, id. at pp. 199-200, 

PageID.2432-33; she could not prove child abuse; and even though something may 

look like child abuse, it is possible that it was not abuse, id. at pp. 201-02, PageID.2434-

35. 

Trial counsel also was successful in eliciting favorable testimony from Dr. 

McGraw, who said that if the child fell on metal strips on the stairs, she could have 

fractured her skull and arm and bruised her skull. See 7/25/12 Trial Tr. at p. 71 (ECF 

No. 16-20, PageID.2511). Dr. DeGraw also testified in response to defense counsel's 

questions that: if the child were dropped and had struck her face, she could have torn 

her frenulum and experienced subdural bleeding, see id. at pp. 72-73, PageID.2512-13;

a caregiver could injure a child's hymen when trying to clean a child after the child 

defecated, id. at p. 77, PageID.2517; certain bowel movements can cause anal tears, 

id. at pp. 77-79, PageID.2517-19; and all the child's external injuries could be explained

by the dog falling down the stairs with the child, id. at pp. 95-96, PageID.2535-36.

The court cannot say that trial counsel's decision to defend the case through 

cross-examination of prosecution's witnesses and arguments was ineffective 

assistance. Petitioner, therefore, has no right to relief on his claim.

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C. Trial Counsel and the Admission of Jailhouse Recordings

Petitioner's seventh habeas claim alleges that trial counsel was ineffective for 

failing to object to, or challenge, the admission of recorded phone calls. A detective 

identified one of the calls as being a conversation between Petitioner and his father

three days after the alleged crimes. Petitioner alleges that the prosecution failed to lay 

a sufficient foundation for admitting the recording under state law because there was no 

showing that the detective was familiar with the voices and could identify them. See 

Petitioner's Suppl. Pet. (ECF No. 12, PageID.149-54). 

Petitioner further alleges that trial counsel's failure to object to the recording

prejudiced him because his explanation in the phone call – that the child fell down some 

stairs after he tripped and lost his grip on her -- conflicted with his initial defense that the 

child fell off the couch and that his dog sat on the child. Petitioner alleges that the 

inconsistent defense theory could have led the jury to distrust the defense and rule 

against him. See id. at PageID.154-56. 

Respondent contends that this claim is procedurally defaulted because the trial 

court stated in its order denying Petitioner's motions for relief from judgment that, "[a]s 

to any issues that may not have been raised on appeal," Petitioner "must show good 

cause for failing to raise them." The court rejects Respondent's procedural-default 

argument because the trial court did not clearly and expressly state that Petitioner's 

claim about the jailhouse recordings was one of the issues that Petitioner could have 

raised on appeal. 

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The court, nevertheless, agrees with Respondent that Petitioner's claim lacks 

substantive merit. His claim is based on Michigan Rule of Evidence 901, which states: 

The requirement of authentication or identification as a condition precedent 

to admissibility is satisfied by evidence sufficient to support a finding that 

the matter in question is what its proponent claims. 

By way of illustration only, and not by way of limitation, the following are 

examples of authentication or identification conforming to the requirements 

of this rule: 

. . . 

Identification of a voice, whether heard firsthand or through 

mechanical or electronic transmission or recording, by opinion 

based upon hearing the voice at any time under 

circumstances connecting it with the alleged speaker. 

Mich. R. Evid. 901(a) and (b)(5). 

The detective who testified about the jailhouse phone call in question was 

familiar with Petitioner because she interviewed him on the day of the alleged crimes. 

See 7/25/12 Trial Tr. at pp. 134-35 (ECF No. 16-20, PageID.2574-75). She explained 

at trial that all phone calls made from inside the jail to the outside are recorded, that the 

phone company monitors the calls, and that someone provided her with a disc 

containing the conversation in question. She claimed to know that the conversation in 

dispute was between Petitioner and his father because Petitioner said, "Dad," in the 

call, and his father said, "Son," in the call. See 7/25/12 Trial Tr. at pp. 125-28 (ECF 

No.16-20, PageID.2565-68). The detective also seemed to be familiar with Petitioner's 

father because, when asked if she had any contact with Petitioner's father, she 

answered, "Yes." Id. at p. 126, PageID.2566. Given this testimony, the recording 

arguably satisfied Rule 901(b)(5). 

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Even if the recording was not properly authenticated, the defense theory 

asserted during the call was that the child's injuries resulted from a fall down some 

stairs. Because that was Petitioner's defense at trial, and because trial counsel had 

previously asserted that defense in his opening statement, see 7/19/12 Trial Tr. at p.38 

(ECF No. 16-17, PageID.1940), trial counsel was not ineffective for failing to object to 

the recording. 

D. Petitioner's Right to Remain Silent

Petitioner's eighth habeas claim alleges that the prosecutor violated his Fifth 

Amendment right to remain silent and not testify. See Petitioner's Suppl. Pet. (ECF No. 

12, PageID.156-59). Petitioner relies on Griffin v. California, 380 U.S. 609 (1965), in 

which the Supreme Court held "that the Fifth Amendment, in its direct application to the 

Federal Government and in its bearing on the States by reason of the Fourteenth 

Amendment, forbids either comment by the prosecution on the accused's silence or 

instructions by the court that such silence is evidence of guilt." Id. at 615. 

The factual basis for Petitioner's claim is the prosecutor's statement during 

closing arguments that Petitioner did not provide medical personnel with information 

about the child's condition after the incident "because he was protecting himself, just as 

he is in this Courtroom." See 7/26/12 Trial Tr. at p. 43 (ECF No.16-21, PageID.2659).

Petitioner claims that the prosecutor's remark about Petitioner protecting himself in the 

courtroom was a direct and flagrant attack on his right not to testify.

Respondent argues that Petitioner's claim is procedurally defaulted because 

Petitioner failed to raise the claim in the State's appellate courts on state collateral 

review and because he no longer has a remedy to exhaust. The record supports 

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Respondent's factual assertion. See Defendant-Appellant's Appl. for Leave to Appeal in 

the Michigan Court of Appeals, pp. i-v (ECF No. 16-32, PageID.3369-73); DefendantAppellant's Appl. for Leave to Appeal in the Michigan Supreme Court, pp. i-v (ECF No. 

16-33, PageID.3529-33). 

1. Exhaustion/Procedural Default

The doctrine of exhaustion of state remedies requires state prisoners to give the 

state courts an opportunity to act on their claims before they present their claims to a 

federal court in a habeas corpus petition. See 28 U.S.C. § 2254(b)(1), (c); O'Sullivan v. 

Boerckel, 526 U.S. 838, 842 (1999). The exhaustion requirement is satisfied if the 

prisoner "invok[es] one complete round of the State's established appellate review 

process," including a petition for discretionary review in the State's highest court "when 

that review is part of the ordinary appellate review procedure in the State." O'Sullivan,

526 U.S. at 845, 847. Thus, to properly exhaust state remedies, a prisoner must fairly 

present the factual and legal basis for each of his claims to the state court of appeals 

and to the state supreme court before raising the claims in a federal habeas corpus 

petition. Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir. 2009). 

The exhaustion requirement, however, refers only to remedies still available at 

the time of the federal petition; it is satisfied if the habeas petitioner's claims currently 

are procedurally barred under state law. Gray v. Netherland, 518 U.S. 152, 161 (1996). 

Stated differently, 

[e]xhaustion is a problem only if the state still provides a remedy for the 

habeas petitioner to pursue, thus providing the state courts an opportunity 

to correct a constitutionally infirm state court conviction. If no remedy exists, 

and the substance of a claim has not been presented to the state courts, no 

exhaustion problem exists; rather, it is a problem of determining whether 

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cause and prejudice exist to excuse the failure to present the claim in the 

state courts. 

Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); accord Carruthers v. Mays, 889 F.3d 

273, 288 (6th Cir. 2018) (stating that, when a claim is unexhausted, but no state remedy 

remains available, the claim is procedurally defaulted, and a federal habeas court may 

not review the claim without a showing of cause and actual prejudice); West v. 

Carpenter, 790 F.3d 693, 697 (6th Cir. 2015) (stating that, "[i]f the petition[er] fails to 

raise a claim on appeal, in violation of a state procedural rule, that claim is subject to 

procedural default and will not be reviewed by federal courts unless the petitioner 

demonstrates cause and prejudice for his default"). 

Petitioner failed to raise his Fifth Amendment claim in the Michigan Court of 

Appeals and in the Michigan Supreme Court on state collateral review, and he no longer 

has a remedy to exhaust, because he already filed one motion for relief from judgment. 

In Michigan, "one and only one motion for relief from judgment may be filed with regard 

to a conviction," unless the subsequent motion is "based on a retroactive change in law 

that occurred after the first motion for relief from judgment or a claim of new evidence 

that was not discovered before the first such motion." Mich. Ct. R. 6.502(G)(1) and (2). 

These exceptions to the rule on second or successive motions do not apply here. 

Therefore, Petitioner's Fifth Amendment claim is procedurally defaulted unless he can 

show cause for his procedural default and resulting prejudice or a miscarriage of justice. 

2. Judicial Estoppel

Petitioner contends that Respondent is judicially estopped from arguing that 

Petitioner's claim is procedurally defaulted, because an assistant prosecuting attorney

for Macomb County argued during the state collateral proceedings that Petitioner fully 

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exhausted his Fifth Amendment claim on direct review, whereas counsel for 

Respondent is now arguing that the claim was not exhausted in state court. See

Petitioner's Reply to State's Summary Judgment Response (ECF No. 26, PageID.4170-

94); see also People's Response to Defendant's Mot. for Relief from J. (ECF No. 16-30, 

PageID.3344-47); People's Answer to Defendant's Appl, for Leave to Appeal in the 

Michigan Supreme Court (ECF No. 16-33, PageID.3699-3702). 

The rule known as judicial estoppel, "generally prevents a party from prevailing in 

one phase of a case on an argument and then relying on a contradictory argument to 

prevail in another phase." New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting 

Pegram v. Herdrich, 530 U.S. 211, 227, n. 8 (2000)); see also McMeans v. Brigano, 228 

F.3d 674, 686 (6th Cir. 2000) (stating that "[t]he doctrine of judicial estoppel forbids a 

party from taking a position inconsistent with one successfully and unequivocally 

asserted by that same party in an earlier proceeding"). 

The pleadings and record in this case reveal inconsistent arguments by 

government attorneys as to whether Petitioner exhausted state remedies for his current 

claim on direct appeal. But "it is 'well-settled that judicial estoppel does not apply where 

the prior inconsistent position occurred because of mistake or inadvertence.' " 

United States v. Bates, 730 F. App'x 281, 284 (6th Cir. 2017) (quoting Lewis v. 

Weyerhaeuser Co., 141 F. App'x 420, 425 (6th Cir. 2005), and citing 

New Hampshire, 532 U.S. at 753 ("We do not question that it may be appropriate to 

resist application of judicial estoppel when a party's prior position was based on 

inadvertence or mistake.")). Here, the prior inconsistent position was a mistake.

Although Petitioner did challenge the prosecutor's closing remarks in his pro se 

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supplemental brief on direct appeal, he did not raise the issue as a Fifth Amendment 

claim. Instead, he claimed that the prosecutor had (i) misled the jury into thinking that 

he talked to medical staff, (ii) incorrectly stated that she did not have to prove 

Petitioner's intent, and (iii) shifted the burden of proof. See Appellant's Suppl. Brief on 

Appeal at pp. 19-22 (ECF No. 16-23, PageID.3028-31).

The Michigan Court of Appeals, moreover, did not treat Petitioner's claim as a 

Fifth Amendment claim. As such, the assistant prosecuting attorney for the county 

erred when he concluded during post-conviction proceedings that Petitioner's claim was 

previously raised and resolved in state court. Petitioner himself admits in his ninth 

habeas claim that appellate counsel did not raise the constitutional violations set forth in 

his supplemental petition on direct appeal. See Petitioner's Suppl. Pet. (ECF No. 12, 

PageID.160). This court, therefore, will not apply the judicial estoppel rule.

3. Cause and Prejudice; Miscarriage of Justice

Petitioner's claim is procedurally defaulted, and he has failed to show "cause" for 

not raising his Fifth Amendment claim in the State's appellate courts. He was 

represented by his current attorney at the time, and because there is no right to counsel 

on state collateral review, appellate counsel cannot be deemed "cause" for his 

procedural default. Coleman v. Thompson, 501 U.S. at 756-57. 

The court need not determine whether Petitioner was prejudiced by his 

procedural error because he has not shown "cause" for the error. Smith v. Murray, 477 

U.S. 527, 533 (1986); Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000). In the 

absence of "cause and prejudice," a habeas petitioner may pursue a procedurally 

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defaulted claim if he can demonstrate that a "failure to consider the claims will result in a 

fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750. 

Petitioner has not presented the court with any new evidence of actual 

innocence. Therefore, a miscarriage of justice will not result from the court’s failure to 

adjudicate his Fifth Amendment claim. That claim is procedurally defaulted.

4. The Merits; Harmless Error

Petitioner's claim lacks merit in addition to being procedurally defaulted because 

the prosecutor did not comment on Petitioner's silence or failure to testify. And "[w]hen 

the alleged infringement consists of statements which do not comment directly on the 

defendant's failure to testify or suggest that an inference of guilt should be drawn from 

this fact, a reviewing court must look at all the surrounding circumstances in determining 

whether or not there has been a constitutional violation." Butler v. Rose, 686 F.2d 1163, 

1170 (6th Cir. 1982).

The disputed remarks about Petitioner protecting himself were part of the 

prosecutor's theory that Petitioner lied about the cause of the complainant's injuries 

after the alleged crimes to protect himself and that he was continuing to protect himself 

at trial by providing an implausible explanation for how the child injured herself. See, 

e.g., 7/26/12 Trial Tr. at p. 34 (ECF No. 16-21, PageID.2650) ("One thing is clear with 

everything the Defendant does . . . he is always protecting himself, he's always shifting 

the blame, and you can hear that throughout all of these messages.").

Even if the prosecutor infringed on Petitioner's right to remain silent, "[i]mproper 

remarks by a prosecutor about a defendant's right to remain silent do not constitute a 

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structural error requiring automatic reversal." Hall, 563 F.3d at 235–36. The alleged 

constitutional error in Petitioner's case was harmless for the following reasons. 

First, the jury would not necessarily have understood the prosecutor to be 

commenting on Petitioner's failure to testify when she stated that Petitioner was 

protecting himself in the courtroom. Second, the remark was a fleeting one in a long 

trial and as part of a lengthy closing argument. Third, defense counsel stated during his 

closing argument that Petitioner did not testify because the jurors had heard his story 

and because the prosecution's evidence was not worthy of a response. See 7/26/12 

Trial Tr. at p.69 (ECF No. 16-21, PageID.2685). 

Finally, the trial court instructed the jurors at the beginning of the trial that the 

attorneys' opening statements and closing arguments were not evidence, that the jurors 

must decide the case solely on the admissible evidence, and that Petitioner was not 

required to prove his innocence or produce any evidence. See 7/19/12 Trial Tr. at pp.

5-6, 8 (ECF No.16-17, PageID.1907-08, 1910). Similarly, at the close of the case, the 

trial court stated that: Petitioner was not required to prove his innocence or do anything;

that he had a right not to testify; and that the jurors should not consider the fact that he 

did not testify, nor let that affect their verdict. See 7/26/12 Trial Tr. at pp. 87-88 (ECF 

No. 16-21, PageID.2703-04). The court also stated that the lawyers' statements, 

arguments, and commentary were not evidence and that they should base their 

decision only on the evidence admitted at trial. See id. at pp. 88-90, PageID.2704-06. 

"Although a general instruction at the end of closing statements may not be 

sufficient to cure the full impact of a prosecutor's improper remarks in every case, the 

instruction does lessen the impact of such remarks, as the jury is presumed to 

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follow all of the court's instructions, not just the contemporaneous ones." Hall, 563 F.3d 

at 238 (internal citations omitted, emphasis in original). Therefore, to the extent the 

prosecutor's remarks about Petitioner trying to protect himself in the courtroom violated

the Fifth Amendment, the remarks were harmless error, and Petitioner is not entitled to 

relief on his eighth claim.

E. Appellate Counsel

Petitioner's ninth and final claim alleges that his appellate attorney on direct 

review was ineffective for failing to raise habeas claims five through eight during the 

direct appeal. He contends that those issues are stronger that the issues raised during 

the direct appeal and that any one of the issues could have changed the outcome of the 

appeal. See Petitioner's Suppl. Pet. (ECF No. 12, PageID.160-61). 

An appellate attorney is constitutionally ineffective if (1) the attorney acted 

unreasonably in failing to discover and raise nonfrivolous issues on appeal, and (2) 

there is a reasonable probability that the petitioner would have prevailed on appeal if his 

attorney had raised the issues. Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing 

Strickland, 466 U.S. at 687-91, 694). Claims five through eight lack merit for the 

reasons given above. "By definition, appellate counsel cannot be ineffective for a failure 

to raise an issue that lacks merit." Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). 

Petitioner, therefore, has no right to relief on his ninth claim.

V. CONCLUSION

For all the reasons set forth above,

IT IS ORDERED that Petitioner’s initial and supplemental petitions (ECF Nos. 1 

and 12) are DENIED. 

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

Petitioner has not "made a substantial showing of the denial of a constitutional right." 

28 U.S.C. § 2253(c)(2). Additionally, reasonable jurists could not disagree with the 

court's resolution of Petitioner's constitutional claims or conclude that Petitioner's claims 

deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 327

(2003); accord Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Moody v. United

States, 958 F.3d 485, 488 (6th Cir. 2020).

 s/Robert H. Cleland / 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: March 17, 2022

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

this date, March 17, 2022, by electronic and/or ordinary mail.

s/Lisa Wagner / 

Case Manager and Deputy Clerk

(810) 292-6522

S:\Cleland\Cleland\CHD\2254\15-12452.Montaldi.dispositive opinion.docx

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