1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

NOAH RICHARD LOVELL, III, 

 Petitioner, 

 Case No. 15-11541 

v. Honorable Linda V. Parker 

PAUL KLEE,1

 

 Respondent. 

________________________________/ 

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF 

HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF 

APPEALABILITY

 Petitioner Noah Richard Lovell, III (“Petitioner”), through counsel, has filed 

a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is 

challenging his Michigan state court convictions for armed robbery in violation of 

Michigan Compiled Laws § 750.529, unlawful imprisonment in violation of 

Michigan Compiled Laws § 750.349b, torture in violation of Michigan Compiled 

Laws § 750.85, and first-degree home invasion in violation of Michigan Compiled 

Laws § 750.110a(2). For the reasons stated below, the Court is denying Petitioner 

habeas relief. The Court also is denying Petitioner a certificate of appealability.

 

1 The Court sua sponte amends the case caption to reflect the warden of the 

Lakeland Correctional facility in Coldwater, Michigan, where Petitioner currently 

is confined. See Rule 2(a) of the Rules Governing § 2254 Cases. 
2 

I. Background 

 Petitioner was convicted of the above-listed offenses following a jury trial in 

the Circuit Court for Livingston County, Michigan. Petitioner was tried with his 

co-defendant, Harry Riley. The trial court sentenced Petitioner, as a fourth 

habitual offender, fourth offense, to concurrent terms of imprisonment of 36 years 

and 8 months to 75 years for his armed robbery and torture convictions and 10 to 

15 years for his unlawful imprisonment conviction, and a consecutive term of 

imprisonment of 13 years and 4 months to 20 years for the first-degree home 

invasion conviction. Petitioner’s convictions and sentence were affirmed on direct 

appeal. People v. Riley, No. 295838, 2011 WL 4501765 (Mich. Ct. App. Sept. 29, 

2011), lv. den., 810 N.W.2d 582 (Mich. 2012). 

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

Court of Appeals when denying Petitioner’s appeal: 

 This case arises out of the armed robbery, unlawful 

imprisonment, torture, and home invasion of an 84-year-old 

victim. On the day of the incident, Riley went to the victim’s 

back door wearing a work vest and a hard hat under the guise 

that he worked for a utility company and wanted to look at the 

victim’s property. The victim walked his property with Riley 

for approximately 45 minutes. Riley was talking on his cellular 

telephone during a substantial portion of that time. Cellular 

telephone call logs showed that Lovell’s telephone was in the 

vicinity of the victim’s house and that numerous calls were 

made to Riley at the time of the crime. Riley’s vehicle was 

rented by Lovell. 
3 

 Riley followed the victim into his house; at that point, the 

victim noticed a pry bar on the table in his dinette. As the 

victim reached for the pry bar, Riley punched the victim in the 

face so hard that it knocked his dentures out of his mouth and 

knocked his glasses off of his face. Riley then grabbed the 

victim and pushed him down the stairs. At the bottom of the 

stairs, Riley continued to beat the victim, punching and kicking 

his face and body. Riley repeatedly demanded to know where 

the victim kept his money, and threatened to kill him. Riley also 

repeatedly poked the victim’s arms, chest, and neck with a 

knife. The victim lost consciousness several times during the 

beating. Riley then sat the victim in a chair and bound his wrists 

and ankles with duct tape. Riley kicked the victim’s face with 

such force that if [sic] left a shoe print. During the incident, the 

victim heard a second individual come halfway down the stairs; 

from his vantage point, the victim could only see the second 

individual, a white male, from the waist down. The second 

individual threatened to kill the victim if he did not reveal the 

location of the money. Meanwhile, Riley took the victim’s coin 

collection. The victim had a broken jaw, broken nose, cracked 

eye sockets, three broken ribs, and blood on the brain. The 

victim stayed in the hospital for over a week, and then spent 

nearly two months in a rehabilitation center. 

 The next day, Lovell and Riley met with George Wilson 

who heard them discussing how they were going to sell coins. 

Wilson also heard Riley berate Lovell for his time-consuming 

method of ransacking drawers. A receipt from a hardware store 

indicating the purchase of a hard hat, pry bar, and work gloves 

was found in the victim’s driveway, and Lovell was identified 

as the individual who purchased the goods. 

Riley, 2011 WL 4501765, at *1-2. These facts are presumed correct on habeas 

review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 

413 (6th Cir. 2009). 
4 

 Petitioner filed a post-conviction motion for relief from judgment in the state 

trial court (ECF No. 5-20), which the court denied. (ECF No. 5-21.) The 

Michigan appellate courts denied Petitioner leave to appeal. People v. Lovell, No. 

319508 (Mich. Ct. App. June 3, 2014) (ECF No. 5-22); lv. den. 858 N.W.2d 53 

(Mich. 2015). 

 Petitioner asserts the following grounds in support of his application for 

federal habeas relief: 

I. Mr. Lovell is entitled to a new trial under the Due 

Process Clause of the Fourteenth Amendment to the U.S. 

Constitution where newly discovered evidence after 

trial—co-defendant Riley’s affidavit exonerating him and 

prosecution witness Mr. Wilson’s affidavit recanting his 

trial testimony against him—show a fair probability that 

a different result would be rendered on retrial. 

II. Mr. Lovell was denied the effective assistance of counsel 

under the Sixth and Fourteenth Amendments to the U.S. 

Constitution when his trial counsel, before testimony was 

given, failed to renew his motion for separate trials or 

juries when co-defendant Riley offered to testify at trial 

to exonerate Mr. Lovell. 

III. Prosecutorial misconduct in rebuttal closing argument 

deprived Mr. Lovell of his right to a fair trial under the 

Fourteenth Amendment to the U.S. Constitution when the 

prosecutor shifted the burden of proof and commented on 

his silence in violation of his privilege against selfincrimination under the Fifth and Fourteenth 

Amendments to the U.S. Constitution. 

IV. Mr. Lovell was denied his right to due process under the 

Fourteenth Amendment to the U.S. Constitution because 

the evidence was insufficient to sustain the convictions. 
5 

V. Mr. Lovell was denied due process under the Fourteenth 

Amendment to the U.S. Constitution when he was 

sentenced on the basis of inaccurate information in the 

presentence report that was improperly used to support 

an upward departure in his sentences. 

VI. Mr. Lovell was denied the effective assistance of counsel 

under the Sixth and Fourteenth Amendments to the U.S. 

Constitution when his appellate counsel failed to raise the 

issues presented in the motion for relief from judgment 

under MCR 6.500 et al, which were also presented to the 

Michigan Court of Appeals and the Michigan Supreme 

Court on appeal and raised in the present habeas petition. 

II. Standard of Review

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

imposes the following standard of review for habeas cases: 

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

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

granted with respect to any claim that was adjudicated on the 

merits in State court proceedings unless the adjudication of the 

claim– 

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

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or 

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

determination of the facts in light of the evidence presented in 

the State court proceeding. 

 

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

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

reached by the Supreme Court on a question of law or if the state court decides a 
6 

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

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

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

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

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

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

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

 “[A] state court’s determination that a claim lacks merit precludes federal 

habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the 

state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing 

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In order to obtain habeas 

relief in federal court, a state prisoner is required to show that the state court’s 

rejection of his or her claim “was so lacking in justification that there was an error 

well understood and comprehended in existing law beyond any possibility for 

fairminded disagreement.” Id. at 103. A habeas petitioner should be denied relief 

as long as it is within the “realm of possibility” that fairminded jurists could find 

the state court decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 

1152 (2016). 

 
7 

III. Discussion 

 A. Actual Innocence Claim 

Petitioner claims that he is entitled to habeas relief because he is actually 

innocent of the charges. Petitioner submits two affidavits in support of this claim. 

In one affidavit, Petitioner’s co-defendant, Mr. Riley, asserts that Petitioner was 

not involved in the planning or commission of the crimes. (See ECF No. 5-20 at 

Pg ID 2646.) Mr. Riley’s affidavit was signed and dated January 3, 2013, over 

three years after Petitioner was convicted. (Id.) The other affidavit is a declaration 

from prosecution witness, George Wilson, in which Wilson claims that he testified 

falsely at Petitioner’s criminal proceedings (i.e., the evidentiary and preliminary 

hearings and trial) about Petitioner’s involvement in the crimes. (Id. at Pg ID 

2649.) Mr. Wilson blames his false testimony on undescribed police coercion. 

(Id.) Mr. Wilson’s declaration is dated June 30, 2010. (Id.) 

 Petitioner first presented Mr. Riley’s affidavit and Mr. Wilson’s declaration 

when he moved for relief from judgment in the state trial court. Petitioner also 

attempted to present Mr. Wilson’s declaration during his appeal of right with the 

Michigan Court of Appeals. The Michigan Court of Appeals refused to consider 

Mr. Wilson’s declaration because it was not part of the lower court record. Riley, 

2011 WL 4501765, at *8. 
8 

 In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court held that 

“[c]laims of actual innocence based on newly discovered evidence” fail to state a 

claim for federal habeas relief “absent an independent constitutional violation 

occurring in the underlying state criminal proceeding.”1

 Id. at 400; see also House 

v. Bell, 547 U.S. 518, 554-55 (2006) (declining to answer the question left open in 

Herrera of whether a habeas petitioner may bring a freestanding claim of actual 

innocence). Federal habeas courts “sit to ensure that individuals are not 

imprisoned in violation of the Constitution, not to correct errors of fact.” Herrera, 

506 U.S. at 400 (citations omitted); see also McQuiggin v. Perkins, 569 U.S. 383, 

392 (2013) (“We have not resolved whether a prisoner may be entitled to habeas 

relief based on a freestanding claim of actual innocence”). Freestanding claims of 

actual innocence are thus not cognizable on federal habeas review, absent 

independent allegations of constitutional error at trial. See Cress v. Palmer, 484 

F.3d 844, 854-55 (6th Cir. 2007) (collecting cases). 

 Furthermore, a long-delayed affidavit which seeks to exonerate the 

defendant or petitioner and shift the blame for the crime to another person is 

“treated with a fair degree of skepticism.” Herrera, 506 U.S. at 423; see also 

 

1 The Herrera Court assumed without deciding that “in a capital case a truly 

persuasive demonstration of ‘actual innocence’ made after trial would render the 

execution of a defendant unconstitutional, and warrant federal habeas relief if there 

were no state avenue open to process such a claim.” 506 U.S. at 417. The 

Supreme Court, however, has not extended such a freestanding claim beyond the 

death penalty context and Petitioner’s case is not a capital case. 
9 

Lewis v. Smith, 100 F. App’x 351, 355 (6th Cir. 2004) (holding that it was proper 

for the district court to reject as suspicious a witness’ recanting affidavit made two 

years after the petitioner’s trial). In particular, “[p]ostconviction statements by 

codefendants [which attempt to exculpate a criminal defendant] are inherently 

suspect because codefendants may try to assume full responsibility for the crime 

without any adverse consequences.” See Allen v. Yukins, 366 F.3d 396, 405 (6th 

Cir. 2004) (post-conviction affidavits of habeas petitioner’s two codefendants were 

legally insufficient to establish that she was actually innocent, so as to toll the 

AEDPA’s statute of limitations; affidavit was inherently suspect because the 

codefendant could have signed it to help petitioner without endangering his own 

interests); In re Byrd, 269 F.3d 561, 574 (6th Cir. 2001) (petitioner did not satisfy 

the miscarriage of justice exception necessary to reach the merits of a successive 

habeas petition, where the evidence of actual innocence was an affidavit from a codefendant which was made six years after the co-defendant had been convicted and 

sentenced for his part in the crime and the co-defendant’s confession was made 

only after he was no longer subject to further punishment for his actions for these 

crimes). 

 Mr. Riley, Petitioner’s co-defendant, signed and dated his affidavit 

exonerating Petitioner over three years after their trial. In the affidavit, Mr. Riley 

does not offer any convincing explanation as to why he waited so long to come 
10 

forward and attempt to exonerate petitioner. Furthermore, the statements come 

after Mr. Riley was sentenced to 75 to 115 years in prison and is no longer subject 

to any further punishment or other adverse consequences for his actions. 

Affidavits from fellow inmates that are created after trial are not sufficiently 

reliable evidence to support a finding of actual innocence. See Milton v. Secretary, 

Dep’t Of Corr., 347 F. App’x 528, 531-32 (11th Cir. 2009). The fact that Mr. 

Riley did not come forward in a timely manner, when he claimed he knew 

Petitioner was wrongly convicted undermines his credibility, particularly when 

there is also no indication that Mr. Riley ever contacted the police or law 

enforcement about his allegedly exculpatory information. See Ashmon v. Davis, 

508 F. App’x 486, 488 (6th Cir. 2012). 

When Petitioner presented Mr. Riley’s affidavit in support of his motion for 

relief of judgment, the trial court judge found that the evidence was not newly 

discovered because “if the Defendant was truly not involved with the crime, he 

was aware or should have been aware that Riley had the ability to offer the 

testimony contained in the current declaration.” People v. Lovell, No. 09-18082-

FC, at *6 (ECF No. 5-21 at Pg ID 2655.) The trial court judge further found that 

“[i]n the face of all the other circumstantial evidence connecting the Defendant to 

the crime, it does not appear Riley’s testimony would render a different result.” Id. 
11 

This Court agrees that Riley’s affidavit is not “newly discovered” evidence that 

would have rendered a different result. 

The Court similarly views Mr. Wilson’s declaration with “extreme 

suspicion.” United States v. Willis, 257 F.3d 636, 645 (6th Cir. 2001) 

(“[A]ffidavits by witnesses recanting their trial testimony are to be looked upon 

with extreme suspicion.”) (internal quotation marks omitted); United States v. 

Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991) (stating that “[r]ecanting affidavits 

and witnesses are viewed with extreme suspicion”), superseded by statute on other 

grounds as recognized in United States v. Avery, 128 F.3d 966, 972 (6th Cir. 1997). 

Mr. Wilson’s recantation is also suspect because his trial testimony was consistent 

with other evidence and testimony presented in the case, while his recantation is 

inconsistent with such evidence. See e.g., Allen v. Woodford, 395 F.3d 979, 994 

(9th Cir. 2005) (uncorroborated recantation is “even more unreliable” where trial 

testimony was consistent with other evidence and recantation was not). Moreover, 

Mr. Wilson’s declaration is dated June 30, 2010, before Petitioner’s direct appeal 

became final. As such, it is not “new” evidence for purposes of establishing actual 

innocence. Moore v. Woods, -- F.3d --, 2018 WL 3089822, at *3 (6th Cir. June 20, 

2018). 

For these reasons, the Court concludes that Petitioner is not entitled to relief 

on his actual innocence claim. 
12 

B. Ineffective Assistance of Trial Counsel Claim

Petitioner alleges that he was denied the effective assistance of counsel when 

his trial attorney failed to renew his motion for severance. Respondent contends 

that this claim is procedurally defaulted due to Petitioner’s failure to provide legal 

support for his claim in the state court. 

Petitioner initially raised this ineffective assistance claim in his motion for 

relief from judgment. In rejecting the claim, the state trial court judge found that 

Petitioner waived it and another ineffective assistance of counsel claim by failing 

to provide citations to the record or any legal authority (besides a general citation 

to Strickland v. Washington, 466 U.S. 668 (1984), and People v. Ginther, 212 

N.W.2d 922 (1973)). People v. Lovell, No. 09-18082-FC, at *7-8 (ECF No. 5-21 

at Pg ID 2657). When the state courts clearly and expressly rely on a valid state 

procedural bar, federal habeas review is also barred unless the petitioner can 

demonstrate “cause” for the default and actual prejudice as a result of the alleged 

constitutional violation, or can demonstrate that failure to consider the claim will 

result in a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 

722, 750-51 (1991). If a petitioner fails to show cause for his procedural default, it 

is unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 

527, 533 (1986). 
13 

In an extraordinary case, however, where a constitutional error has probably 

resulted in the conviction of one who is actually innocent, a federal court may 

consider the constitutional claims presented even in the absence of a showing of 

cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-80 (1986). To 

be credible, such a claim of innocence requires a petitioner to support the 

allegations of constitutional error with new reliable evidence that was not 

presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). “‘[A]ctual 

innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. 

United States, 523 U.S. 614, 624 (1998). 

Under Michigan law, a party who fails to develop any argument or cite any 

authority in support of his or her claim waives appellate review of the issue. People 

v. Griffin, 597 N.W.2d 176, 186 (Mich. Ct. App. 1999). “A party may not merely 

state a position and then leave it to [the reviewing court] to discover and rationalize 

the basis for the claim.” Id. (citations omitted). A state court conclusion that an 

issue was waived is considered a procedural default. See e.g. Shahideh v. McKee, 

488 F. App’x 963, 965 (6th Cir. 2012). 

As cause for the procedural default, Petitioner argues that his postconviction counsel was ineffective for failing to adequately brief Petitioner’s claim 

based on trial counsel’s failure to renew the request for severance. Petitioner 

cannot rely on ineffective assistance of post-conviction counsel as cause because 
14 

there is no constitutional right to an attorney in post-conviction proceedings.2

 See

Coleman, 501 U.S. at 752-53, see also Landrum v. Mitchell, 625 F.3d 905, 919 

(6th Cir. 2010). Because Petitioner has not demonstrated any cause for his 

procedural default, it is unnecessary to reach the prejudice issue regarding his 

second claim. Smith, 477 U.S. at 533. 

Additionally, for the reasons asserted earlier, Petitioner does not present any 

new reliable evidence to support an assertion of innocence allowing this Court to 

consider his claim as a ground for a writ of habeas corpus in spite of the procedural 

default. 

In short, the Court finds that Petitioner’s second claim is procedurally 

defaulted.

C. Prosecutorial Misconduct Claim 

Petitioner claims he was denied a fair trial because of prosecutorial 

misconduct. 

“On habeas review, claims of prosecutorial misconduct are reviewed 

deferentially.” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003) (citing 

Darden v. Wainwright, 477 U.S. 168, 181 (1986)). A prosecutor’s improper 

 

2 The Supreme Court has stated an exception to this rule for claims that could not 

have been raised on direct appeal. Martinez v. Ryan, 566 U.S. 1 (2012). In 

Michigan, however, defendants may assert ineffective-assistance claims on direct 

appeal. Bell v. Howe, 701 F. App’x 408, 413 (6th Cir. 2017) (citing Taylor v. 

McKee, 649 F.3d 446, 452 (6th Cir. 2011)). As such, Petitioner cannot rely on his 

claim of ineffective assistance of post-conviction counsel to excuse his default. 
15 

comments will be held to violate a criminal defendant’s constitutional rights only if 

they “‘so infected the trial with unfairness as to make the resulting conviction a 

denial of due process.’” Id. (quoting Darden, 477 U.S. at 181 (additional citation 

omitted)). Therefore, a claim of prosecutorial misconduct provides a basis for 

habeas relief only if the conduct was so egregious as to render the entire trial 

fundamentally unfair based on the totality of the circumstances. Donnelly v. 

DeChristoforo, 416 U.S. 637, 643-45 (1974). Moreover, to obtain federal habeas 

relief on a prosecutorial misconduct claim, the petitioner must show that the state 

court’s rejection of the claim “was so lacking in justification that there was an error 

well understood and comprehended in existing law beyond any possibility for 

fairminded disagreement.” Parker v. Matthews, 567 U.S. 37, 48 (2012) (quoting 

Harrington, 562 U.S. at 103). 

Petitioner first contends that the prosecutor committed misconduct in closing 

rebuttal argument by shifting the burden of proof to Petitioner by stating: “You 

[referring to defense counsel] sat and attacked everybody in this case and you 

didn’t once tell us what did your client do. What’s he responsible for?” (11/4/09 

Trial Tr. at 217, ECF No. 5-14 at Pg ID 2212.) The trial court instructed the jury 

that Petitioner was presumed innocent and that the prosecutor had the burden of 
16 

proving Petitioner’s guilt beyond a reasonable doubt.2

 (Id. at 99, Pg ID 2094.) The 

trial court further instructed the jury: 

 Next section, defendant not testifying. Every defendant 

has the absolute right not to testify. When you decide the case 

you must not consider the fact that defendants Riley and Lovell 

did not testify. It must not effect your verdict in any way. 

(Id. at 100, Pg ID 2095.) Any possible prejudice that might have resulted from the 

prosecutor’s comment was cured by the trial court’s instructions regarding the 

proper burden of proof. See Scott v. Elo, 302 F.3d 598, 603-04 (6th Cir. 2002) 

(denying habeas relief and concluding that even if prosecutor committed 

misconduct during closing argument, it was not an error that “jury instructions 

could not cure.”); see also United States v. Carter, 236 F.3d 777, 786-87 (6th Cir. 

2001) (finding that the prosecutor’s misstatement during closing arguments 

regarding witness’s testimony was inherently prejudicial to the defendant and 

indicating that such prejudice could have been cured or at least minimized by 

curative instructions to the jury, but concluding that no instructions directed at the 

misstatements were given). 

Petitioner further alleges that the prosecutor committed misconduct by 

commenting on Petitioner’s pre-arrest silence in response to comments by codefendant Riley. Petitioner contends that “co-defendant Riley’s alleged utterances, 

 

2

 The judge in this case instructed the jurors prior to closing arguments. 
17 

as reported by Mr. Wilson, were improperly used against [him] as an ‘adoptive 

admission,’ even though he said nothing in reply and thus there was no indication 

that he assented to the statements made.” (Habeas Pet. at 35, ECF No. 1-1 at Pg ID 

53).3

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

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

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

When viewed in context, the prosecutor’s comments referred to Petitioner’s silence 

in response to Lovell’s statements the day after the incident and before he was 

arrested or invoked his right to remain silent. 

 

3

 Respondent argues that this second prosecutorial misconduct claim is 

procedurally defaulted because it was never exhausted with the state courts and 

Petitioner no longer has an available state court remedy to exhaust the claim. 

Respondent, however, acknowledges that Petitioner did allude to the claim in his 

post-conviction motion for relief from judgment. In any event, a habeas 

petitioner’s failure to exhaust his or her state court remedies does not deprive a 

federal court of its jurisdiction to consider the merits of the habeas petition. 

Granberry v. Greer, 481 U.S. 129, 131 (1987). An unexhausted claim may be 

adjudicated by a federal court on habeas review if the unexhausted claim is without 

merit, such that addressing the claim would be efficient and would not offend the 

interest of 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). Even if the claim is 

unexhausted, the claim is without merit. 
18 

For these reasons, Petitioner is not entitled to relief on his prosecutorial 

misconduct claim. 

D. Sufficiency of the Evidence Claim 

Petitioner next claims that there was insufficient evidence to convict him. 

“[T]he Due Process Clause protects the accused against conviction except 

upon proof beyond a reasonable doubt of every fact necessary to constitute the 

crime with which he is charged.” In Re Winship, 397 U.S. 358, 364 (1970). When 

reviewing a sufficiency of the evidence claim, the court must ask “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). The court does not “ask itself whether it believes that the evidence at the 

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

original). 

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

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

the state court’s resolution of the claim. Instead, a federal court may grant habeas 

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

of the Jackson standard. See Cavazos v. Smith, 565 U.S. 1, 2 (2011). “Because 

rational people can sometimes disagree, the inevitable consequence of this settled 
19 

law is that judges will sometimes encounter convictions that they believe to be 

mistaken, but that they must nonetheless uphold.” Id. For a federal habeas court 

reviewing a state court conviction, “the only question under Jackson is whether 

that finding was so insupportable as to fall below the threshold of bare rationality.” 

Coleman v. Johnson, 566 U.S. 650, 656 (2012). A state court’s determination that 

the evidence does not fall below that threshold is entitled to “considerable 

deference under AEDPA.” Id.

Petitioner argues that there was insufficient evidence to establish his identity 

as one of the victim’s assailants. Petitioner also contends that the evidence 

presented was insufficient to sustain his convictions. Petitioner does not contest 

the elements of the charged offenses; rather, he argues that there was insufficient 

evidence to find him guilty beyond a reasonable doubt of aiding and abetting his 

co-defendant in the commission of the crimes for which he was convicted.3

The Michigan Court of Appeals found strong circumstantial evidence 

supporting Petitioner’s identity as a principal and an aider-and-abettor: 

 3

 To find a defendant guilty of aiding and abetting in the commission of a 

crime, the prosecutor must show that: (1) the crime charged was committed by the 

defendant or some other person; (2) the defendant performed acts or gave 

encouragement that assisted the commission of the crime; and (3) the defendant 

intended the commission of the crime or had knowledge that the principal 

intended its commission at the time he gave aid and encouragement. Riley v. 

Berghuis, 481 F.3d 315, 322 (6th Cir. 2007) (citing People v. Carines, 597 

N.W.2d 130, 135 (1999)). 
20 

 Lovell argues that there was no evidence that he 

was in the victim’s house during the crimes, or was 

Riley’s accomplice. Thus, he is challenging the evidence 

of his identity as a perpetrator. Lovell also argues that 

there was insufficient evidence that the second person in 

the house intended the crimes of armed robbery, unlawful 

imprisonment, and torture. 

 In viewing the evidence in the light most favorable 

to the prosecution, we find that the prosecutor 

established that Lovell purchased a hard hat, pry bar, 

and work gloves at a hardware store the day before the 

crimes. In reference to the pry bar, the hardware store 

manager heard Lovell’s companion inquire: “are you 

going to buy that tool to beat that guy’s ass[?]” Lovell 

was identified as the individual who rented the vehicle 

seen in the victim’s driveway at the time the crimes 

occurred. Cellular telephone call logs showed that 

Lovell’s telephone was in the vicinity of the victim’s 

house and that numerous calls were made to Riley at the 

time of the crime. While the victim was bound (false 

imprisonment), Riley severely beat him (torture) and 

poked him with a knife while stealing his coin collection 

(armed robbery). While this was occurring, the other 

individual in the house threatened to kill the victim if he 

did not reveal the location of his money. When Lovell 

and Riley met Wilson the next day, Wilson heard them 

talking about how they were going to sell coins, and 

heard Riley berate Lovell for the method he used to 

ransack drawers. 

 Identity may be shown by either direct testimony 

or circumstantial evidence. Here, ample circumstantial 

evidence exists, as set forth above, identifying Lovell as 

one of the perpetrators of the charged offenses. 

Riley, 2011 WL 4501765, at *7–8. (internal citation and footnote omitted). 
21 

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

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

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

People v. Turrell, 181 N.W.2d 655, 656 (Mich. Ct. App. 1970)). Michigan law 

further provides that “‘[c]ircumstantial evidence and reasonable inferences arising 

from that evidence can constitute satisfactory proof of the elements of a crime.’” 

People v. Nowack, 614 N.W.2d 78, 81 (Mich. 2000) (quoting People v. Carines, 

597 N.W.2d 130 (1999)). As the Sixth Circuit has stated: “Circumstantial 

evidence alone is sufficient to support a conviction, and ‘it is not necessary for the 

evidence at trial to exclude every reasonable hypothesis except that of guilt.’” 

Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000) (quoting United States v. 

Reed, 167 F.3d 984, 992 (6th Cir. 1999)) (additional citations and brackets 

omitted). 

The state court reasonably concluded that circumstantial evidence 

established Petitioner’s identity as the second offender and that his actions at the 

crime scene aided and abetted Mr. Riley. Because there were multiple pieces of 

evidence to establish Petitioner’s identity as one of the perpetrators of the offenses, 

the state court did not unreasonably apply the Jackson standard in rejecting 

Petitioner’s sufficiency of evidence claim. See Moreland v. Bradshaw, 699 F.3d 

908, 919-21 (6th Cir. 2012). 
22 

The state court also reasonably concluded that there was sufficient evidence 

for a rational trier of fact to conclude that Petitioner aided and abetted Mr. Riley 

with the crimes, including the torture charge. As noted above, to be convicted as 

an aider and abettor, the defendant must either possess the required intent to 

commit the crime or have participated while knowing that the principal had the 

requisite intent; such intent may be inferred from circumstantial evidence. See 

Long v. Stovall, 450 F. Supp. 2d 746, 753 (E.D. Mich. 2006); People v. Wilson, 

196 Mich. App. 604, 614; 493 N.W.2d 471 (1992). The intent of an aider and 

abettor is satisfied by proof that he knew the principal’s intent when he gave aid or 

assistance to the principal. People v. McCray, 533 N.W. 2d 359, 361 (Mich. Ct. 

App. 1995) (citations omitted). An aider and abettor’s state of mind may be 

inferred from all of the facts and circumstances, including close association 

between the defendant and the principal, the defendant’s participation in the 

planning and execution of the crime, and evidence of flight after the crime. People 

v. Turner, 540 N.W.2d 728, 733-34 (Mich. Ct. App. 1995) (citations omitted). 

In Petitioner’s case, there was sufficient evidence to establish that he aided 

and abetted Mr. Riley in all of the offenses for which he was convicted. This 

includes the torture conviction, even if Petitioner never actually touched the 

victim. Petitioner is not entitled to relief on his sufficiency of the evidence claim. 

E. Sentencing Guideline Claim 
23 

Petitioner argues that he was denied due process when inaccurate 

information in the presentence report was used to support an upward departure in 

his sentences. Specifically, Petitioner refers to the report’s reference to him as a 

“gyps[y]” “who travel[s] throughout the country, including all the states Lovell ... 

has worked in, making a living employing scams in the home improvement trade.” 

(Pet. at 40-41, ECF No. 1-1 at Pg ID 58-59.) He also refers to the report’s 

statement that he has a history of exploiting elderly people, which the trial judge 

described as “a pattern of, of practices of preying on good natured citizens who are 

willing to give tradesman work who come to their door. And have only to be 

brutalized or swindled ultimately and almost killed because ... good heartedness 

and giving work to solicitors.” (12/11/09 Hr’g Tr. at 54-55 ECF No. 5-16 at Pg ID 

2321-22.) 

Claims concerning the trial court’s calculation of a defendant’s sentencing 

guidelines range under state law are state-law claims and typically not cognizable 

in federal habeas corpus proceedings. See Hutto v. Davis, 454 U.S. 370, 373-74 

(1982) (federal courts normally do not review a sentence for a term of years that 

falls within the limits prescribed by the state legislature); Austin v. Jackson, 213 

F.3d 298, 301-02 (6th Cir. 2000) (alleged violation of state law with respect to 

sentencing is not subject to federal habeas relief). However, “an alleged violation 

of state law could, potentially, ‘be sufficiently egregious to amount to a denial of 
24 

equal protection or due process of law guaranteed by the Fourteenth 

Amendment.’” Koras v. Robinson, 123 F. App’x 207, 213 (6th Cir. 2005) (quoting 

Bowling v. Parker, 344 F.3d 487, 521 (6th Cir. 2003)) (additional quotation marks 

and citation omitted). A sentence may violate due process if it is based upon 

“material ‘misinformation of constitutional magnitude.’” Koras, 123 F. App’x at 

213 (quoting Roberts v. United States, 445 U.S. 552, 556 (1980)); see also United 

States v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 741 

(1948). 

To prevail on such a claim, the petitioner must show that (1) the information 

before the sentencing court was materially false, and (2) the court relied on the 

false information in imposing the sentence. Tucker, 404 U.S. at 447; United States 

v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984); Koras, 123 F. App’x at 213 (quoting 

United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988)). The sentencing court 

demonstrates actual reliance on misinformation when the court give “explicit 

attention” to it, “found” its sentence “at least in part” on it, or gives “specific 

consideration” to the information before imposing sentence. Tucker, 404 U.S. at 

444, 447. 

The sentencing transcript does not reflect the state trial court’s reliance on 

information Petitioner claims to be false. When speaking about Petitioner, 

specifically, the trial judge did not state that Petitioner had travelled around the 
25 

United States taking advantage of elderly homeowners or scamming homeowners. 

What the trial court discussed instead was Mr. Riley’s out-of-state conduct after 

the incident in question which undisputedly did involve taking advantage of 

several elderly homeowners. 

With respect to Petitioner, the trial judge referred only “in passing” to 

“issues that occurred in Midland county and Tawas and Clair” and “those business 

practices[.]” (12/11/09 Hr’g Tr. at 56, ECF No. 5-16 at Pg ID 2324) However, 

Petitioner does not show that this information was false. Moreover, the transcript 

reflects that the facts primarily influencing the trial court’s sentencing decision 

were those presented at trial, which Petitioner has not shown to be false. (See id. at 

54-58, Pg ID 2321-2325.) Specifically, the trial court concluded that Petitioner 

posed “a clear and present danger” warranting sentences above the guidelines due 

to his conduct with respect to the victim, including Petitioner’s primary role in 

planning and “put[ting] in motion” the confrontation, robbery and severe beating 

of the victim, not putting a stop to the beating despite seeing and hearing what was 

happening, and leaving the victim for dead, bound and gagged in his basement. 

(Id.) To the extent the trial court relied on any materially false information, it is 

not “misinformation of constitutional magnitude.” See supra.

Petitioner is not entitled to habeas relief based on his sentencing claim. 

F. Ineffective Assistance of Appellate Counsel Claim
26 

In his final claim, Petitioner contends that his appellate counsel was 

ineffective for failing to raise on direct appeal the issues presented in his motion 

for relief from judgment. 

The Sixth Amendment guarantees a defendant the right to the effective 

assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387, 

396-397 (1985). Court appointed counsel, however, does not have a constitutional 

duty to raise every nonfrivolous issue a defendant requests. Jones v. Barnes, 463 

U.S. 745, 751 (1983). The issues presented in the motion for relief from judgment 

were found to be meritless. “[A]ppellate counsel cannot be found to be ineffective 

for ‘failure to raise an issue that lacks merit.’” Shaneberger v. Jones, 615 F.3d 

448, 452 (6th Cir. 2010) (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 

2001)). 

The Court therefore concludes that Petitioner is not entitled to habeas relief 

based on his ineffective assistance of appellate counsel claim. 

IV. Conclusion & Certificate of Appealability

For the reasons set forth above, the Court concludes that Petitioner is not 

entitled to habeas relief pursuant to § 2254. Therefore, the Court is denying 

Petitioner’s application for the writ of habeas corpus. 

In order to appeal this decision, Petitioner must obtain a certificate of 

appealability. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A certificate of 
27 

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

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner 

satisfies this standard by demonstrating that jurists of reason could disagree with 

the district court’s resolution of his constitutional claims or that jurists could 

conclude the issues presented are adequate to deserve encouragement to proceed 

further.” Miller-El, 537 U.S. at 327. 

 Reasonable jurists could not debate the Court’s assessment of 

Petitioner’s claims, nor conclude that the issues deserve encouragement to 

proceed further. The Court therefore declines to issue a certificate of 

appealability. 

Accordingly, 

IT IS ORDERED that the Petition for a Writ of Habeas Corpus is DENIED 

WITH PREJUDICE. 

IT IS FURTHER ORDERED that a Certificate of Appealability is 

DENIED. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: August 21, 2018 

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

record and/or pro se parties on this date, August 21, 2018, by electronic and/or 
28 

U.S. First Class mail. 

 s/ R. Loury 

 Case Manager