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By Order entered this date, David Bergh has been substituted in place of Nick J. Ludwick as

the proper respondent in this action.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MORRIS EUGENE FOSTER,

Petitioner,

CASE NO. 2:08-CV-14269

v. JUDGE ROBERT H. CLELAND

MAGISTRATE JUDGE PAUL J. KOMIVES

DAVID BERGH,

Respondent.1

 /

REPORT AND RECOMMENDATION

Table of Contents

I. RECOMMENDATION ................................................................. 2

II. REPORT ............................................................................ 2

A. Procedural History ............................................................. 2

B. Factual Background Underlying Petitioner’s Conviction ................................ 5

C. Standard of Review ............................................................. 7

D. Evidentiary Claims (Claims I, V & VI) .............................................. 9

1. Clearly Established Law .................................................. 9

2. Other Acts Evidence (Claims I & V) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

3. Telephone Recordings (Claim VI) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

E. Suppression of Evidence (Claim IV) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

F. Prosecutorial Misconduct (Claim X) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

a. Victim Testimony Regarding Inaudible Portions of Recordings . . . . . . . . . . . . . . . . 17

b. Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

c. Testimony Regarding Religious Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

G. Sentencing (Claim II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1. Guidelines Scoring and Uncharged Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2. Determination of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

H. Ineffective Assistance of Counsel (Claims III, VIII, IX & XI) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

a. Failure to Investigate/Prepare for Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

b. Failure to Move to Suppress Recorded Conversations . . . . . . . . . . . . . . . . . . . . . . . . 32

c. Failure to Object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

I. Denial of Appeal (Claims XIII & XIV) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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J. Newly Discovered Evidence (Claim XII) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

K. Evidentiary Hearing (Claims VII, XIII & XIV) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

1. State Court Denials of Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

2. Entitlement to Evidentiary Hearing in this Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

L. Recommendation Regarding Certificate of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

1. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

M. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

III. NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

* * * * *

I. RECOMMENDATION: The Court should deny petitioner’s application for the writ of habeas

corpus.

II. REPORT:

A. Procedural History

1. Petitioner Morris Eugene Foster is a state prisoner, currently confined at the Thumb

Correctional Facility in Lapeer, Michigan.

2. On October 12, 2005, petitioner was convicted of three counts of third degree criminal

sexual conduct, MICH.COMP.LAWS § 750.520d, following a jury trial in the Oakland County Circuit

Court. On October 27, 2005, he was sentenced as an habitual offender to concurrent terms of 33-60

years’ imprisonment on each count.

3. Petitioner filed a delayed application for leave to appeal in the Michigan Court of

Appeals raising, through counsel, the following claims:

I. DEFENDANT WAS DENIED A FAIR TRIAL BY THE INTRODUCTION

OF OTHER ALLEGED, UNCHARGED ACTS BOTH WITH THE

COMPLAINANT AND HIS NIECE AND THE EVIDENCE THAT WAS

UNCONNECTED TO THE INSTANT OFFENSE AND IRRELEVANT TO

ANY PROPER PURPOSE UNDER MRE 404(B). US CONST AM XIV.

II. THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS

RIGHTS BY DEPARTING ABOVE THE STATUTORY SENTENCING

GUIDELINE RANGE BASED ON DISPUTED FACTS WHICH THE

PROSECUTOR DID NOT PROVE BEYOND A REASONABLE DOUBT
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AND FACTS THAT WERE ALREADY SCORED OR CONSIDERED

WITHIN THE SENTENCING GUIDELINES.

Petitioner filed a pro se supplemental brief raising the following additional claims:

I. TRIAL COUNSEL WAS INEFFECTIVE THROUGHOUT TRIAL, WHICH

DEPRIVED DEFENDANT OF A DEFENSE IN VIOLATION OF HIS

FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO COUNSEL

AND TO PRESENT A COMPLETE AND EFFECTIVE DEFENSE.

II. DEFENDANT IS ENTITLED TO A NEW TRIAL BASED ON THE

VIOLATION OF THE DISCOVERY ORDER AND SUPPRESSION OF

EXCULPATORY EVIDENCE OR, IN THE ALTERNATIVE, BASED ON

NEWLY DISCOVERED, EXCULPATORY EVIDENCE. US CONST AM

VI; XIV.

III. THE TRIAL COURT VIOLATED DEFENDANT’S DUE PROCESS

RIGHTS BY ADMITTING UNDULY PREJUDICIAL EVIDENCE OF

OTHER CRIMES AND BAD ACTS.

IV. THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS

RIGHTS BY ADMITTING A TAPE RECORDING INTO EVIDENCE,

WHERE THE SUBJECT OF THE RECORDING COULD NOT BE

AUTHENTICATED AND WHERE THE DANGER OF UNFAIR

PREJUDICE FROM THE RECORDING SUBSTANTIALLY

OUTWEIGHED ITS PROBATIVE VALUE.

V. DEFENDANT IS ENTITLED TO REMAND TO A GINTHER HEARING

TO SHOW, BY SEPARATE RECORD, THAT TRIAL COUNSEL WAS

INEFFECTIVE.

VI. DEFENDANT WAS DENIED THE CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL’S

ERRORS SINGULARLY AND OR CUMULATIVELY DEPRIVED

SUBSTANTIAL RIGHTS.

A. TRIAL COUNSEL FAILED TO MOTION TO SUPPRESS

OFFICIAL’S [sic] ILLEGAL WARANTLESS RECORDING OF

TELEPHONE CONVERSATION WHERE THE PARTICIPANT

CONSENT IS OBVIOUSLY INVALID DUE TO TEXAS COURT

ORDERED PERSONAL PROTECTION ENJOINING SUCH

RIGHTS THAT DEFINED SUCH CONDUCT CRIMINALLY

PROHIBITED.
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VII. TRIAL COUNSEL FAILED TO INVESTIGATE AND PREPARE FOR A

CREDIBILITY CONTEST TRIAL INCLUDING OBTAINING

IMPEACHMENT EVIDENCE.

A. TRIAL COUNSEL FAILED TO OBTAIN AND REVIEW WITH

HIS CLIENT THE PROSECUTOR’S TAPED TELEPHONE

CONVERSATIONS STRICKEN WITH UNINTELLIGIBLE

SECTIONS TO DETERMINE APPROPRIATE TRIAL STRATEGY.

B. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO

OBTAIN KNOWN EVIDENCE TO IMPEACH VICTIM AND

PROSECUTOR’S WITNESS AND OR REQUEST

CONTINUANCE.

VIII. DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL DUE

TO PROSECUTORIAL MISCONDUCT EMPLOYING AN IMPROPER

PROCEDURE AT TRIAL TO SUPPLEMENT UNINTELLIGIBLE

SECTIONS IN TAPE RECORDING(S) WITH VICTIM’S OPINION AND

TESTIMONY, THEN IMPROPERLY BOLSTERED THAT EVIDENCE BY

ELICITING OFFICIAL ACTION CONTRASTED TO VICTIM’S

RELIGIOUS PRACTICES TO WARD OFF FUTURE SEXUAL

ASSAULTS.

IX. TRIAL COUNSEL’S ERRORS WERE SO SERIOUS AS TO DEPRIVE

THE DEFENDANT OF A FAIR TRIAL, A TRIAL WHOSE RESULT IS

RELIABLE.

The court of appeals denied petitioner’s application for leave to appeal in a standard order, “for lack

of merit in the grounds presented.” People v. Foster, No. 273987 (Mich. Ct. App. June 8, 2007) (per

curiam). The court of appeals also denied petitioner’s motions to remand for an evidentiary hearing,

to submit new evidence, and to hold the case in abeyance

4. Petitioner, proceeding pro se, sought leave to appeal these issues to the Michigan

Supreme Court. The Supreme Court denied petitioner’s application for leave to appeal in a standard

order. See People v. Foster, 480 Mich. 952, 741 N.W.2d 363 (2007).

5. Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus

on October 7, 2008. As grounds for the writ of habeas corpus, he raises the eleven claims that he
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raised in the Michigan Court of Appeals, as well as a claims of newly discovered evidence and denial

of appeal of right.

6. Respondent filed his answer on June 1, 2009. He contends that petitioner’s claims

are without merit.

7. Petitioner filed a reply to respondent’s answer on July 16, 2009.

B. Factual Background Underlying Petitioner’s Conviction

Petitioner’s convictions arise from the repeated sexual assault of his daughter over a period

of several years. The evidence adduced at trial was accurately summarized in petitioner’s brief in

the Michigan Court of Appeals:

Carietha Johnson, 21 years of age, testified that she was a student at Prairie View

A&M in Texas and that she was studying chemical engineering. Prior to college,

Johnson lived on Strathmore in Detroit with Mr. Foster and her step-mother. After

she enrolled in college, Mr. Foster moved to Ferndale. Johnson stated that she moved

in with Mr. Foster when she was 12 years old. She had been in foster care for

approximately 18 months prior to that, because her mother, Sarietha Johnson, was a

drug addict and protective services had removed her from her mother’s care.

Johnson claimed that her father sexually abused her beginning at the age of

12. She alleged that he penetrated her with his penis approximately once a week until

she told her mother and her aunt. When she turned 14, Johnson claimed these sexual

assaults began to occur a “couple of times” a week, and she told her aunt again.

At the age of 15, Johnson began fighting back and claimed Mr. Foster would

become physically abusive toward her. She never showed anyone the marks on her

body. Johnson testified that Mr. Foster was strict and would not let her date before

prom her senior year of high school. At the age of 19, Johnson claimed Mr. Foster

hit her in the face, but no one saw it occur or the marks it left.

Johnson alleged that in the Fall of 2002, Mr. Foster came down to college

with her prior to her first semester. She stayed in a motel with him and claimed Mr.

Foster sexually assaulted her.

Johnson stated that she came home from college during Christmas break of

2002. Mr. Foster had moved to Ferndale at this time. Johnson alleged that Mr. Foster

sexually assaulted her, and she told him that she would not come home anymore.

Johnson again returned to Ferndale during her spring break in March 2003. She

claimed that more sexual assaults took place.

After that break from school, Johnson returned to Texas, but came back to

Ferndale at the end of the semester in May 2003. At that time, her stepmother was
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not living with Mr. Foster, and Johnson told him she was suicidal. She claimed that

Mr. Foster told her the assaults would stop, but they did not.

During summer school in 2003, Johnson told a counselor about the alleged

assaults. Around the same time, Johnson told Mr. Foster that she would have no

more contact with him. Johnson then claimed Mr. Foster began calling her 30 to 50

times a day and made threats that led her to report his calls.

In December 2003, Johnson contacted and spoke with the Ferndale Police

Department. She then called Mr. Foster from the Ferndale Police Department and

those calls were recorded. A few of the taped calls were played for the jury during

the trial.

Johnson alleged that she became pregnant her sophomore year of high school

by Mr. Foster and that the pregnancy ended in a miscarriage. This information had

not been previously testified to by Ms. Johnson or told to anyone, including the

prosecutor’s office. It came out for the first time at trial and was not supported by

any other testimony or medical records.

Sareena Saulter testified that Carietha Johnson was her niece and that Johnson

lived with her during the summers of 1993 and 1997. Saulter stated that Johnson told

her about Mr. Foster’s alleged sexual assaults, and that Johnson wanted to tell the

police but was very afraid. Saulter did nothing but take Johnson to a doctor for an

examination. Saulter then testified that Mr. Foster “raised her fine” in reference to

Carietha Johnson.

Sarietha Johnson testified that she was Carietha’s mother and that her

daughter last lived with her when she was 10 years old. Protective services took her

children away due to neglect caused by Sarietha’s addiction to crack cocaine.

Johnson voluntarily terminated her parental rights to Carietha so Mr. Foster could

raise her. She was currently residing at Scott Correctional Facility serving a sentence

for armed robbery.

Sarietha testified that years ago, Carietha had told Sareena Saulter that Mr.

Foster had improperly touched her. She claimed that in 2003, Mr. Foster admitted

to sleeping with Carietha. Yet, Sarietha did not contact the police or any other

authorities.

Maria Payne testified that she was Carietha Johnson’s cousin and her best

friend. Payne talked to Carietha several times a week. On the night of Carietha’s

prom, Payne was at the home waiting for Carietha to return. Payne was planning on

spending the night and claimed while waiting, Mr. Foster sexually assaulted her in

the guest room.

Payne did not tell Carietha when she came home, but later told Mr. Foster’s

sister Myra, an Aunt Lisa and an uncle. Aunt Myra did not believe her. Payne never

went to the police about this alleged incident, but claimed to tell a school counselor

that did nothing about it. She never knew about the allegations against Mr. Foster by

Carietha until years later. At the conclusion of Payne’s testimony, the prosecution

rested.

Defendant-Appellant Morris Foster testified that he was 46 years old and had

prior felony convictions for controlled substances, attempted burglary, and assault
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with intent to rob while armed. Foster stated that he was Carietha’s father and that

he had been given custody of his daughter by the court when she was in seventh

grade. Mr. Foster raised Carietha from that point onward. In 2000, he married

Ernestine Coats. Mr. Foster testified that Carietha did not like his parental

restrictions as she was used to taking care of herself.

Mr. Foster denied having sexual relations with Maria Payne on the night of

Carietha’s prom. Mr. Foster also denied ever having sexual relations with his

daughter or knowing that she was pregnant.

Naomi Sanders testified that Mr. Foster is her godson and that Carietha lived

with her while Mr. Foster was in rehab. Sanders asked Carietha directly if Mr. Foster

ever touched her, and Carietha told her that he had never touched her. Carietha also

never told her that she was pregnant.

Candace Scott testified that Mr. Foster is her uncle and that she would stay at

his home. Scott indicated that she spent an entire summer at Mr. Foster’s residence,

and Carietha never told her about any sexual assaults.

Melody Merchant testified that she lived with Mr. Foster and had known him

since she was 16 years old. Merchant’s mother was married to Mr. Foster at the time

of trial. Carietha never said anything to her about assaults and Mr. Foster never

assaulted her.

Def.-Appellant’s Br. on App., in People v. Foster, No. 273987 (Mich. Ct. App.), at 2-6.

C. Standard of Review

Because petitioner’s application was filed after April 24, 1996, his petition is governed by

the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997).

Amongst other amendments, the AEDPA amended the substantive standards for granting habeas

relief by providing:

(d) 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.
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28 U.S.C. § 2254(d).

“[T]he ‘contrary to’ and ‘unreasonable application’ clauses [have] independent meaning.”

Williams v. Taylor, 529 U.S. 362, 405 (2000); see also, Bell v. Cone, 535 U.S. 685, 694 (2002). “A

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

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

materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a

result different from [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam)

(quoting Williams, 529 U.S. at 405-06); see also, Early v. Packer, 537 U.S. 3, 8 (2002); Bell, 535

U.S. at 694. “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas court

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

Court but unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v. Smith,

539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also, Bell, 535 U.S. at 694.

However, “[i]n order for a federal court to find a state court’s application of [Supreme Court]

precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or erroneous.

The state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-

21 (citations omitted); see also, Williams, 529 U.S. at 409.

By its terms, § 2254(d)(1) limits a federal habeas court’s review to a determination of whether

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

Supreme Court.” Thus, “§ 2254(d)(1) restricts the source of clearly established law to [the Supreme]

Court’s jurisprudence.” Williams, 529 U.S. at 412. Further, the “phrase ‘refers to the holdings, as

opposed to the dicta, of [the] Court’s decisions as of the time of the relevant state-court decision.’

In other words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle
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or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer

v. Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted) (quoting Williams, 529 U.S. at 412).

Although “clearly established Federal law as determined by the Supreme Court” is the

benchmark for habeas review of a state court decision, the standard set forth in § 2254(d) “does not

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

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

them.” Early, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although the requirements

of “clearly established law” are to be determined solely by the holdings of the Supreme Court, the

decisions of lower federal courts are useful in assessing the reasonableness of the state court’s

resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Phoenix v.

Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000); Dickens v. Jones, 203 F. Supp.2d 354, 359 (E.D.

Mich. 2002) (Tarnow, J.).

D. Evidentiary Claims (Claims I, V & VI)

In his first, fifth, and sixth claims, petitioner challenges the admission of evidence at his trial.

In his first and fifth claims, he contends that the trial court erred in admitting evidence of other bad

acts. In his sixth claim, he contends that the trial court erred in admitting the recordings of telephone

conversations between him and the victim. The Court should conclude that petitioner is not entitled

to habeas relief on these claims.

1. Clearly Established Law

It is well established that habeas corpus is not available to remedy a state court’s error in the

application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“Today, we

reemphasize that it is not the province of a federal habeas court to reexamine state-court
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determinations on state-law questions.”); Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990) (a federal

court on habeas review “ha[s] no authority to review a state’s application of its own laws.”). Thus,

unless a violation of a state’s evidentiary rule results in the denial of fundamental fairness, an issue

concerning the admissibility of evidence does not rise to the level of a constitutional magnitude. See

Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988); Davis v. Jabe, 824 F.2d 483, 487 (6th Cir.

1987). “[A] federal habeas court has nothing whatsoever to do with reviewing a state court ruling

on the admissibility of evidence under state law. State evidentiary law simply has no effect on [a

court’s] review of the constitutionality of a trial, unless it is asserted that the state law itself violates

the Constitution.” Pemberton v. Collins, 991 F.2d 1218, 1223 (5th Cir. 1993). As the Sixth Circuit

has noted, “[e]rrors by a state court in the admission of evidence are not cognizable in habeas

proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the

defendant the fundamental right to a fair trial.” Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994).

In short, “[o]nly when the evidentiary ruling impinges on a specific constitutional protection

or is so prejudicial that it amounts to a denial of due process may a federal court grant a habeas

corpus remedy.” Barrett v. Acevedo, 169 F.3d 1155, 1163 (8th Cir. 1999); see also, Coleman v.

Mitchell, 244 F.3d 533, 542 (6th Cir. 2001). Where a specific constitutional right–such as the right

to confront witnesses or to present a defense–is not implicated, federal habeas relief is available only

if the allegedly erroneously admitted evidence “is almost totally unreliable and . . . the factfinder and

the adversary system will not be competent to uncover, recognize, and take due account of its

shortcomings.” Barefoot v. Estelle, 463 U.S. 880, 899 (1983).

2. Other Acts Evidence (Claims I & V)

At trial, the prosecution introduced evidence that petitioner had committed sexual assaults,
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other than those charged in the information, against the victim, and that he had committed sexual

assaults against the victim’s cousin. As noted above, the issue here is not whether this evidence was

properly admitted under the Michigan Rules of Evidence, but rather whether petitioner was denied

a fair trial by the introduction of this evidence. This being the case, petitioner is not entitled to

habeas relief even if the evidence was not properly admitted under Rule 404(b). Both the Supreme

Court and the Sixth Circuit have repeatedly held that a defendant is not denied a fair trial by the

admission of prior bad acts evidence which is relevant in the defendant’s trial. See Estelle, 502 U.S.

at 69-70; Dowling v. United States, 493 U.S. 342, 353-54 (1990); Coleman v. Mitchell, 268 F.3d 417,

439-40 (6th Cir. 2001); Pennington v. Lazaroff, 13 Fed. Appx. 228, 232 (6th Cir. 2001) (per curiam)

(unpublished); Manning v. Rose, 507 F.2d 889, 893-95 (6th Cir. 1974). Here, the evidence was

admissible for the proper purposes of showing a common scheme or plan, and to explain the victim’s

delay in reporting the assaults. See Mot. Hr’g Tr., dated 8/3/05, at 37; MICH. R. EVID. 404(b).

Petitioner contends that this evidence was unreliable because he was never arrested for or charged

with these offenses, and because they were not corroborated by any other evidence. These matters,

however, were for the jury to resolve in assessing the credibility of the witnesses, and do not render

the evidence inadmissible. Thus, petitioner was not denied a fair trial by the introduction of this

evidence. 

3. Telephone Recordings (Claim VI)

Petitioner also contends that he was denied a fair trial by the introduction of recordings of

telephone conversations between him and the victim, in which the victim discussed petitioner’s prior

assaults on her. Much of petitioner’s argument with respect to the recordings relates to his argument

that he was denied a fair trial by the introduction of other acts evidence. This argument fails for the
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reasons set forth above. Petitioner also contends that the recordings should not have been admitted

because they were not properly authenticated. This claim is without merit. Rule 901 provides, in

relevant part, that “[t]he 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.” MICH.R. EVID. 901(a). The rule goes on to provide “[b]y way of illustration

. . . examples of authentication or identification conforming with the requirements of this rule.”

MICH.R.EVID. 901(b). One such example is “[i]dentification 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(b)(5).

At trial the victim, who was familiar with petitioner’s voice, testified regarding the circumstances

of the recorded phone conversations and identified the male voice on the recordings as belonging to

petitioner. See Trial Tr., dated 10/11/05, at 5. This was sufficient to authenticate the recordings.

See People v. Berkey, 437 Mich. 40, 50, 467 N.W.2d 6, 11 (1991) (“[A] tape ordinarily may be

authenticated by having a knowledgeable witness identify the voices on the tape.”); id. at 52, 467

N.W.2d at 12 (footnotes omitted) (“If a tape, or any other proposed exhibit that is subject to the MRE

901 requirement of authentication, is shown to be ‘what its proponent claims,’ then it has been

authenticated sufficiently. In this case, the prosecution claimed that the tapes were recordings of

conversations between the victim and the defendant. The prosecution, having shown these tapes to

be what it claims them to be, has provided authentication.”).

Nor were the tapes inadmissible merely because some portions were inaudible or

unintelligible. As the Sixth Circuit has explained under the Federal Rules of Evidence, “[t]he fact

that a tape recording has some unintelligible portions does not automatically render the entire
2

Petitioner also contends that his counsel was ineffective for failing to move to suppress the

recordings on Fourth Amendment grounds. Petitioner does not appear to raise a substantive claim on

this basis, and the claim is therefore addressed in connection with petitioner’s ineffective assistance

claims, infra.

13

recording inadmissible. For the tape to be inadmissible, the incomprehensible portions must be so

‘substantial as to render the recordings as a whole untrustworthy.’” United States v. Wilkinson, 53

F.3d 757, 761 (6th Cir. 1995) (quoting United States v. Robinson, 763 F.2d 778, 781 (6th Cir.1985)

(internal citations and quotations omitted)); see also, United States v. Arango-Correa, 851 F.2d 54,

58 (2d Cir. 1988). Here, petitioner has offered nothing to show that the inaudible portions of the tape

were “so substantial as to render the recordings as a whole untrustworthy.” Accordingly, the Court

should conclude that petitioner is not entitled to habeas relief on this claim.2

E. Suppression of Evidence (Claim IV)

Petitioner next claims that prosecution suppressed exculpatory evidence in violation of his

due process rights. Specifically, petitioner contends that all of the telephone recordings were not

disclosed to him. The Court should conclude that petitioner is not entitled to habeas relief on this

claim.

1. Clearly Established Law

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held “that the suppression by

the prosecution of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” Id. at 87. However, “there is no general constitutional right to discovery in a criminal

case, and Brady did not create one.” Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Thus, in

order to establish a Brady violation, petitioner must show both that the prosecutor withheld evidence

which was both (1) favorable to the accused and (2) material to guilt or punishment. See United
14

States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988). Furthermore, regardless of the exculpatory

nature or materiality of the evidence withheld by the prosecution, “[n]o Brady violation exists where

a defendant knew or should have known the essential facts permitting him to take advantage of any

exculpatory information, or where the evidence is available to defendant from another source.”

United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991) (citations omitted) (internal quotation

omitted); accord United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir. 1994). Thus, petitioner’s

claim raises three questions: (1) was the evidence suppressed by the prosecution in that it was not

known to petitioner and not available from another source?; (2) was the evidence favorable or

exculpatory?; and (3) was the evidence material to the question of petitioner’s guilt? See Carter v.

Bell, 218 F.3d 581, 601 (6th Cir. 2000); Luton v. Grandison, 44 F.3d 626, 628-29 (8th Cir. 1994);

see also, Moore v. Illinois, 408 U.S. 786, 794-95 (1972). Petitioner bears the burden of establishing

each of these three elements. See Carter, 218 F.3d at 601. If all three of these questions are

answered in the affirmative, petitioner has established a constitutional error entitling him to the writ

of habeas corpus and “there is no need for further harmless-error review.” Kyles v. Whitley, 514 U.S.

419, 435 (1995). If, one the other hand, any of these questions is answered in the negative, then

petitioner has failed to establish a Brady violation.

2. Analysis

As noted above, petitioner had no constitutional right to discovery, see Weatherford, 429 U.S.

at 559, and he therefore cannot establish his entitlement to habeas relief merely by demonstrating that

the prosecution failed to provide discovery information in violation of a court order. Any violation

of the state law discovery rules raises an issue not cognizable on habeas review. See Lorraine v.

Coyle, 291 F.3d 416, 441 (6th Cir. 2002); Burns v. Lafler, 328 F. Supp. 2d 711, 723 (E.D. Mich.
15

2004) (Gadola, J.); Meade v. Lavigne, 265 F. Supp. 2d 849, 867 (E.D. Mich. 2003) (Tarnow, J.).

Rather, petitioner must show that he was deprived of material, exculpatory information by the

prosecution’s omission. Petitioner has failed to make this showing.

Specifically, petitioner cannot show that the telephone recordings were suppressed.

Petitioner’s counsel never indicated at trial that the recordings had not been disclosed, and

petitioner’s own evidence compels a finding that the recordings were disclosed well before trial.

Attached to petitioner’s application is a cover letter from the prosecuting attorney, dated August 26,

2005, detailing discovery items sent with the letter. The letter indicates that the discovery packet

included both a “Text of Defendant’s phone message to Carietha Johnson,” and a “Transcript of

Defendant’s phone call conversation.” Pet., Appx. C-7. Petitioner appears to be arguing that the

prosecutor violated Brady because several portions of the recordings were inaudible or unintelligible.

Although Brady requires disclosure of exculpatory evidence, it is well established, that “Brady . . .

does not require the government to create exculpatory material that does not exist.” United States

v. Sukumolachan, 610 F.2d 685, 687 (9th Cir. 1980); see also, United States v. Parks, 100 F.3d 1300,

1305 n.2 (7th Cir. 1996); Richards v. Solem, 693 F.2d 760,766 (8th Cir. 1982) (“Although the state

has a duty to disclose evidence, it does not have a duty to create evidence.”). Because petitioner does

not allege that a recording existed in which the entire conversation was audible, petitioner cannot

show that the prosecution suppressed any existing evidence within the meaning of Brady.

Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim.

F. Prosecutorial Misconduct (Claim X)

Petitioner next contends that he was denied a fair trial by several instances of prosecutorial

misconduct. All of these alleged errors relate to the victim’s testimony regarding the recorded
16

telephone conversations. Specifically, petitioner contends that the prosecutor committed misconduct

by: (1) employing an improper procedure whereby the victim supplemented the inaudible portions

of the telephone recordings; (2) improperly eliciting opinion testimony regarding what was on the

recordings and suborning perjury; (3) bolstering the victim’s testimony by indicating that the

conversations were recorded at the direction of the police; and (4) eliciting testimony regarding the

victim’s religious practices. The Court should conclude that petitioner is not entitled to habeas relief

on this claim.

1. Clearly Established Law

For habeas relief to be warranted on the basis of prosecutorial misconduct, it is not enough

that the prosecutor’s conduct was “undesirable or even universally condemned.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986). Rather, the misconduct must have “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” Id. (internal quotation

omitted). “[T]he touchstone of due process analysis . . . is the fairness of the trial, not the culpability

of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). In determining whether the

prosecutor’s conduct was so egregious as to warrant habeas relief, a court should consider “the

degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the

accused; whether they are isolated or extensive; whether they were deliberately or accidentally

placed before the jury; and the strength of the competent proof to establish the guilt of the accused.”

Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (internal quotations and citations omitted).

In sum, to constitute a denial of due process the prosecutor’s conduct must be “so pronounced and

persistent that it permeates the entire atmosphere of the trial.” Id. (internal quotation omitted).

2. Analysis
17

a. Victim Testimony Regarding Inaudible Portions of Recordings

Petitioner contends that the prosecutor employed an improper procedure by asking the victim

to testify regarding what petitioner was saying to her during the inaudible portions of the recorded

telephone conversations. See Trial Tr., dated 10/11/05, at 5-11. However, petitioner has failed to

point to any rule or decision which suggests that such testimony was improper. Had the

conversations not been recorded, there would have been no evidentiary bar to the victim testifying

with respect to the conversations she had with petitioner and the statements he made to her. Such

a bar did not arise merely because the conversations were recorded. Thus, the victim was free to

testify as to her recollection of petitioner’s statements to her. Contrary to petitioner’s argument, the

victim’s testimony did not amount to hearsay, because petitioner’s statements to her constituted a

statement by a party opponent. See MICH. R. EVID. 801(d)(2). Nor did the prosecutor improperly

bolster the testimony of the victim by eliciting that the recordings were made at the direction of the

police. The prosecutor did not suggest that the victim’s testimony was believable because she was

acting in concert with the police. Rather, the evidence was elicited solely by way of background to

show how the recordings came to be. Thus, petitioner cannot show that the prosecutor committed

misconduct in questioning the victim regarding the substance of the inaudible portions of the

recordings.

b. Perjury

Petitioner also contends that because the portions of the recordings were inaudible, the

victim’s testimony regarding what petitioner was saying during those inaudible portions was

fabricated, and that he was denied a fair trial by the prosecutor’s presentation of this false testimony.

It is well established that “a conviction obtained by the knowing use of perjured testimony is
18

fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false

testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103

(1976) (footnote omitted); accord Napue v. Illinois, 360 U.S. 264, 271 (1959). This is true whether

the false testimony goes to the defendant’s guilt or to a witness’s credibility, see Napue, 360 U.S. at

270, and it matters not whether the prosecution directly elicits the false testimony or merely allows

false testimony to go uncorrected, see id. at 269. It is equally well established, however, that

petitioner bears the burden of proving that the testimony amounted to perjury. As the Fourth Circuit

has explained, “[a] defendant seeking to vacate a conviction based on perjured testimony must show

that the testimony was, indeed, perjured. Mere inconsistencies in testimony by government witnesses

do not establish the government’s knowing use of false testimony.” United States v. Griley, 814 F.2d

967, 971 (4th Cir. 1987); accord United States v. Verser, 916 F.2d 1268, 1271 (7th Cir. 1990) (“[N]ot

every testimonial inconsistency that goes uncorrected by the government establishes a constitutional

violation.”); Horton v. United States, 983 F. Supp. 650, 657 (E.D. Va. 1997); United States v. Hearst,

424 F. Supp. 307, 318 (N.D. Cal. 1976). Thus, to succeed on this claim petitioner must show that:

(1) the prosecutor presented evidence which was false; (2) the prosecutor knew of the falsity; and

(3) the evidence was material. See Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1999). As the Verser

court further explained, to establish a constitutional violation petitioner must show that the

“inconsistent testimony amounted to perjury, ‘the willful assertion under oath of a false, material

fact.’” Verser, 916 F.2d at 1271 (quoting Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984));

see also, Horton, 983 F. Supp. at 657 (quoting United States v. Smith, 62 F.3d 641, 646 (4th Cir.

1995)) (in order to establish Napue violation defendant must show that the government knowingly

used perjured testimony, perjury being “false testimony concerning a material matter, ‘given with
19

the willful intent to deceive (rather than as a result of, say, confusion, mistake, or faulty memory.’”).

In other words, petitioner must show that the testimony was “indisputably false.” Byrd v. Collins,

209 F.3d 486, 817-18 (6th Cir. 2000).

Here, petitioner cannot show that the victim’s testimony was “indisputable false.” Petitioner

does not point to any specific statement attributed to him by the victim as being false, nor does he

provide any evidence to suggest that the victim’s testimony was false. Rather, he contends only that

the victim’s testimony must have been fabricated because she was purporting to identify what he said

when the tape was inaudible. This alone, however, does not show that the victim’s testimony was

false because the victim was a participant in the recorded conversations. Thus, the victim could

testify to her recollection of petitioner’s statements independent of the recording, and the fact that

the recording was inaudible does not show that her independent recollection was false. Accordingly,

the Court should conclude that petitioner is not entitled to habeas relief on this claim.

c. Testimony Regarding Religious Practices

Finally, petitioner contends that the prosecutor committed misconduct by eliciting testimony

regarding the victim’s religious practices. During direct examination, the victim testified that she

coped with the assaults by praying for them to stop, and that she sometimes asked petitioner to pray

for the assaults to stop. She explained that she returned home after she had left for college in Texas

because she was hoping and praying that petitioner would stop assaulting her. See Trial Tr., dated

10/11/05, at 12-14.

A prosecutor may not inject a person’s religious beliefs into a trial to argue that those beliefs

themselves establish the credibility or lack of credibility of a witness or establish guilt. See FED.R.

EVID. 610; MICH. R. EVID. 610. Notwithstanding this rule, “[a] person’s beliefs, superstitions, or
20

affiliations with a religious group is properly admissible where probative of an issue in a criminal

prosecution.” United States v. Beasley, 72 F.3d 1518, 1527 (11th Cir. 1996). Here, the evidence

relating to the victim’s praying was not injected to suggest that the victim was more credible than

petitioner, nor did the prosecutor make such an argument. Rather, the evidence was relevant to help

explain how the victim coped with the sexual assaults and why she would return to the home after

she had left for college. The evidence was therefore relevant, and was not improperly used to credit

the victim on the basis of her religious beliefs. Cf. United States v. Hoffman, 806 F.2d 73, 708-09

(7th Cir. 1986) (evidence of religious beliefs properly admitted where they were probative of

defendant’s motive). Accordingly, the Court should conclude that petitioner is not entitled to habeas

relief on this claim.

G. Sentencing (Claim II)

In his second claim, petitioner contends that the trial court improperly scored and departed

upward from the sentencing guidelines, based its sentence in part on uncharged conduct for which

he was not convicted, and based its sentence on disputed facts which the prosecution did not prove

beyond a reasonable doubt. The Court should conclude that petitioner is not entitled to habeas relief

on these claims.

1. Guidelines Scoring and Uncharged Conduct

Petitioner contends that the trial court improperly scored the Michigan sentencing guidelines

in his case, and that the court improperly departed upward from the guideline sentence without

providing a compelling reason for doing so. This claim is not cognizable on habeas review. A habeas

petitioner’s claim that the trial court violated state law when sentencing him is not cognizable in

habeas corpus proceedings. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988); Haynes v.
21

Butler, 825 F.2d 921, 924 (5th Cir. 1987). Federal habeas courts have no authority to interfere with

perceived errors in state law unless the petitioner is denied fundamental fairness in the trial process.

See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Serra v. Michigan Department of Corrections,

4 F.3d 1348, 1354 (6th Cir. 1993). Petitioner’s claim that the court improperly scored or departed

from the guidelines range raises issues of state law that are not cognizable on habeas review. See

Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999) (Gadola, J.) (claim that sentencing court

departed from Michigan sentencing guidelines presents an issue of state law only and is, thus, not

cognizable in federal habeas review); Welch v. Burke, 49 F. Supp. 2d 992, 1009 (E.D. Mich. 1999)

(Cleland, J.) (same); see also, Branan, 851 F.2d at 1508 (claim that court misapplied state sentencing

guidelines not cognizable on habeas review). Thus, petitioner is not entitled to habeas relief on his

claims relating to the trial court’s scoring of, or departure from, the Michigan sentencing guidelines.

Nor is petitioner entitled to relief on the basis that the trial court relied on uncharged

conduct–the other sexual assaults against the victim and her cousin–in determining an appropriate

sentence. As the Supreme Court has explained, traditionally “[s]entencing courts have not only taken

into consideration a defendant’s prior convictions, but have also considered a defendant’s past

criminal behavior, even if no conviction resulted from that behavior.” Nichols v. United States, 511

U.S. 738, 747 (1994); see also, United States v. Miller, 588 F.2d 1256, 1266 (9th Cir. 1978)

(“[E]vidence of other criminal conduct not resulting in conviction may be considered when imposing

sentence.”). Thus, the trial court was free to consider petitioner’s other criminal behavior in

imposing a sentence within the range prescribed by the legislature for the crimes on which petitioner

was convicted. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief

on these sentencing claims.
22

2. Determination of Facts

Petitioner also contends that the trial court based its sentence on facts which were not proved

by the prosecution beyond a reasonable doubt. Although he does not explicitly cite to them, this

claim appears to be based on the Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296

(2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Court held that “[o]ther

than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Apprendi, 530 U.S. at 490. In Blakely, the Court considered the applicability of Apprendi to a state

sentencing guidelines scheme similar to the United States Sentencing Guidelines. The state in that

case argued that guidelines findings were not prohibited by Apprendi because Apprendi prohibited

only factual findings at sentencing which increased the statutory maximum penalty to which the

defendant was exposed. The Court in Blakely rejected this argument and struck down the state

guidelines scheme, explaining that:

the “statutory maximum” for Apprendi purposes is the maximum sentence a judge

may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant. In other words, the relevant “statutory maximum” is not the

maximum sentence a judge may impose after finding additional facts, but the

maximum he may impose without any additional findings. When a judge inflicts

punishment that the jury’s verdict alone does not allow, the jury has not found all the

facts “which the law makes essential to the punishment,” and the judge exceeds his

proper authority.

Blakely, 542 U.S. at 303-04 (citations omitted) (emphasis in original).

Finally, in United States v. Booker, 543 U.S. 220 (2005), the Court took the step logically

suggested by Blakely, concluding that the United States Sentencing Guidelines are unconstitutional

under Apprendi because they allow federal judges to impose sentences based on facts not found by

a jury beyond a reasonable doubt. Two separate majorities formed the Court’s decision. Justice
23

Stevens delivered the opinion of the Court on the substantive question of whether the Guidelines are

unconstitutional under Apprendi. Noting that there was no difference of constitutional significance

between the Guidelines and the state guideline system at issue in Blakely, see Booker, 543 U.S. at

233, and rejecting the government’s attempts to distinguish the two, see id. at 237-43, the merits

majority concluded that the Guidelines violate the Sixth Amendment as interpreted in Apprendi. A

separate majority joined an opinion authored by Justice Breyer, which contained the Court’s decision

on the remedial issue. The remedial majority concluded that the appropriate remedy for the

constitutional violation was not to strike the Guidelines in their entirety, but to excise two statutory

provisions which make the Guidelines mandatory. See id. at 245. Thus, under Booker the Guidelines

remain advisory, and a federal district judge must consult the Guidelines before imposing sentence,

but the judge is not bound to follow the Guidelines.

Blakely and Apprendi, however, are inapplicable here. Michigan law provides for an

indeterminate sentencing scheme, unlike the determinate sentencing schemes at issue in Blakely and

Booker. Under Michigan law the defendant is given a sentence with a minimum and a maximum

sentence. The maximum sentence is not determined by the trial judge but is set by law. See People

v. Drohan, 475 Mich. 140, 160-61, 715 N.W.2d 778, 789-90 (2006); People v. Claypool, 470 Mich.

715, 730 n.14, 684 N.W.2d 278, 286 n.14 (2004); MICH. COMP. LAWS § 769.8. “[M]ichigan’s

sentencing guidelines, unlike the Washington guidelines at issue in Blakely, create a range within

which the trial court must set the minimum sentence.” Drohan, 475 Mich. at 161, 715 N.W.2d at 790.

Under Michigan law, only the minimum sentence must presumptively be set within the appropriate

sentencing guidelines range. See People v. Babcock, 469 Mich. 247, 255 n.7, 666 N.W.2d 231, 236

n.7 (2003) (discussing MICH. COMP. LAWS § 769.34(2)). Under Michigan law, the trial judge sets
24

the minimum sentence, but can never exceed the maximum sentence. See Claypool, 470 Mich. at 730

n.14, 684 N.W.2d at 286 n.14.

Blakely is inapplicable here because Blakely is concerned only with the maximum penalty

which is authorized by a jury’s findings or a defendant’s plea: if some additional factor increases the

defendant’s penalty beyond that which could be imposed solely on the basis of the jury’s findings

or the defendant’s plea, Blakely requires that those facts be found by a jury beyond a reasonable

doubt (or be themselves pleaded to by a defendant). As explained above, unlike the guidelines

scheme at issue in Blakely, the Michigan sentence guidelines help determine only the minimum

portion of a defendant’s indeterminate sentence. The maximum is, in every case, the statutory

maximum authorized by law. See Claypool, 470 Mich. at 730 n.14, 684 N.W.2d at 286 n.14; MICH.

COMP. LAWS § 769.8. Petitioner’s conviction on the CSC-I charges, therefore, contained all of the

factual findings necessary to impose the statutory maximum (life imprisonment) on those charges.

See Drohan, 475 Mich. at 162, 715 N.W.2d at 790 (“Thus, the trial court’s power to impose a

sentence is always derived from the jury’s verdict, because the ‘maximum-minimum’ sentence will

always fall within the range authorized by the jury’s verdict.”).

This being the case, petitioner’s sentence did not violate Blakely. The Supreme Court has

repeatedly made clear that the Apprendi rule is concerned only with the maximum sentence which

is authorized by a jury’s verdict or a defendant’s plea. As the Supreme Court explained in Harris

v. United States, 536 U.S. 545 (2002):

Apprendi said that any fact extending the defendant’s sentence beyond the maximum

authorized by the jury’s verdict would have been considered an element of an

aggravated crime–and thus the domain of the jury–by those who framed the Bill of

Rights. The same cannot be said of a fact increasing the mandatory minimum (but

not extending the sentence beyond the statutory maximum), for the jury’s verdict

authorized the judge to impose the minimum with or without the finding.
25

Harris, 536 U.S. at 557. This distinction is important because the only issue under the Sixth

Amendment is whether the judge is impinging on the role of the jury. For this reason, the Court

explicitly excepted indeterminate sentencing schemes such as Michigan’s from its holding in Blakely.

Rejecting an argument raised by Justice O’Connor in dissent, the Court explained:

Justice O’Connor argues that, because determinate sentencing schemes

involving judicial factfinding entail less judicial discretion than indeterminate

schemes, the constitutionality of the latter implies the constitutionality of the former.

This argument is flawed on a number of levels. First, the Sixth Amendment by its

terms is not a limitation on judicial power, but a reservation of jury power. It limits

judicial power only to the extent that the claimed judicial power infringes on the

province of the jury. Indeterminate sentencing does not do so. It increases judicial

discretion, to be sure, but not at the expense of the jury’s traditional function of

finding the facts essential to lawful imposition of the penalty. Of course

indeterminate schemes involve judicial factfinding, in that a judge (like a parole

board) may implicitly rule on those facts he deems important to the exercise of his

sentencing discretion. But the facts do not pertain to whether the defendant has a

legal right to a lesser sentence–and that makes all the difference insofar as judicial

impingement upon the traditional role of the jury is concerned.

Blakely, 542 U.S. at 309 (citation omitted).

Under this reasoning, it is clear that Michigan’s indeterminate sentencing guideline scheme,

under which the maximum is established by statute and only the minimum term is based on judicial

factfinding, does not violate the Sixth Amendment. See Montes v. Trombley, 599 F.3d 490, 496-97

(6th Cir. 2010); Mays v. Trombley, No. 2:06-CV-14043, 2006 WL 3104656, at *3 (E.D. Mich. Oct.

31, 2006) (Hood, J.); Worley v. Palmer, No. 2:06-CV-13467, 2006 WL 2347615, at *2 (E.D. Mich.

Aug. 11, 2006) (Cohn, J.); Drohan, 475 Mich. at 164, 715 N.W.2d at 791-92; Claypool, 470 Mich.

at 730 n.14, 684 N.W.2d at 286 n.14. Accordingly, the Court should conclude that petitioner is not

entitled to habeas relief on this claim.

H. Ineffective Assistance of Counsel (Claims III, VIII, IX & XI)

Petitioner next raises several ineffective assistance of counsel claims. In Claims III and IX,
26

petitioner contends that counsel failed to investigate impeachment evidence to attack the credibility

of the victim and her cousin, failed to interview witnesses, and failed to obtain and review with

petitioner the taped telephone conversations. In Claim VIII, petitioner contends that counsel was

ineffective for failing to move to suppress the warrantless recording of his telephone conversations

with the victim. In Claim XI, petitioner contends that counsel was ineffective for failing to object

to the prosecutor’s improper questioning of the victim regarding the unintelligible portions of the

recordings and to the introduction of other acts testimony, and that counsel’s errors on the whole

were prejudicial. The Court should conclude that petitioner is not entitled to habeas relief on these

claims.

1. Clearly Established Law

The Sixth Amendment right to counsel and the right to effective assistance of counsel protect

the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To

establish the ineffective assistance of counsel, petitioner must show that: (1) counsel’s errors were

so serious that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment;” and (2) counsel’s deficient performance prejudiced the defense. Id. at 687. These two

components are mixed questions of law and fact. See id. at 698. Further, “[t]here is no reason for

a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.” Id. at 697. If “it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be

followed.” Id.

With respect to the performance prong of the Strickland inquiry, a strong presumption exists

that counsel’s behavior lies within the wide range of reasonable professional assistance. See id. at
27

689; see also O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). “[D]efendant must overcome

the presumption that, under the circumstances, the challenged action ‘might be considered sound trial

strategy.’” Strickland, 466 U.S. at 689 (citation omitted). “[T]he court should recognize that counsel

is strongly presumed to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Id. at 690. With respect to the prejudice prong, the

reviewing court must determine, based on the totality of the evidence before the factfinder, “whether

there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.” Id. at 695.

2. Analysis

a. Failure to Investigate/Prepare for Trial

Petitioner contends that counsel was ineffective for failing to investigate impeachment

evidence that would have discredited the victim and her cousin regarding their claims of sexual

assault. Specifically, petitioner contends that counsel should have investigated the medical records

of the victim to impeach her with evidence that she was taking birth control pills and to impeach her

testimony that she had become pregnant as a result of the sexual assaults, which pregnancy ended

in a miscarriage. Petitioner also contends that counsel should have investigated the medical records

of the victim’s cousin, Maria Payne, who claimed at trial that she went to the doctor because of the

sexual assault committed on her by petitioner. Even assuming that the records would have provided

additional impeachment information (which petitioner has provided no basis to believe), petitioner

cannot show that counsel was ineffective for failing to obtain these records. In the first place,

counsel had no reason to request the victim’s medical records to impeach her testimony that she

became pregnant by petitioner because, as counsel elicited from the victim on cross-examination, she
28

had never told anyone of this fact until her testimony at trial. See Trial Tr., dated 10/11/05, at 44-45.

Further, counsel elicited from the victim the fact that she was taking birth control pills. See id. at 38-

39. In any event, petitioner cannot show that he was prejudiced by counsel’s failure to investigate

this evidence because counsel presented a significant impeachment case. Counsel elicited from the

victim on cross-examination that she had never told her doctors about the sexual assaults during high

school, see id. at 22-23; that she did not tell anyone about the assaults in high school even though

she had a leadership position in the Junior ROTC program, which required honesty, see id. at 23-24;

that she did not tell anyone about the December 2002 assault, which occurred when she was home

from college, when she returned to college or when she was on a trip to Florida with her godmother,

see id. at 32-33; and that she never told any of the other various family members with whom she

lived during the years the assaults were occurring, see id. at 35-37. With respect to Payne, counsel

elicited on cross-examination that she never turned her medical records over to the police even

though she had obtained them, see id. at 85; that she had not reported petitioner’s assault of her to

the police, see id. at 87; and that the family members to whom she reported the assault did not

believe her, see id. at 87-88. In addition to this impeachment through cross-examination, counsel

presented several witnesses who also impeached the victim’s testimony. Naomi Sanders testified

that, at a family barbeque, she explicitly asked the victim if petitioner or anyone else had been

sexually assaulting her, and the victim stated the petitioner was not sexually assaulting her. See id.

at 140. Sanders also testified that the victim never told her that she had been assaulted or become

pregnant. See id. at 140-41. Candace Scott testified that the victim never told her of the sexual

assaults, see id. at 145, and that she never witnessed or heard rumors about any inappropriate sexual

behavior despite staying with petitioner a number of times over the years. See id. at 146. And
29

Melody Merchant, petitioner’s step-daughter, likewise testified that the victim never told her about

any sexual assaults and that she was never assaulted by petitioner. See id. at 149. In closing

argument, counsel relied on the lack of any medical records to argue that the victim’s claim that she

had become pregnant was not true. See id. at 172-73. Counsel also extensively detailed the repeated

failures of the victim to report the sexual assaults when she had multiple opportunities to do so, see

id. at 173-75, and noted that neither Payne’s family members nor her school counselor believed her

claim that she had been sexually assaulted by petitioner, see id. at 175-76.

“[C]ourts generally entrust cross-examination techniques, like other matters of trial strategy,

to the professional discretion of counsel.” Dell v. Straub, 194 F. Supp. 2d 629, 651 (E.D. Mich. 2002)

(Friedman, J.); see Fugate v. Head, 261 F.3d 1206, 1219 (11th Cir. 2001); Dows v. Wood, 211 F.3d

480, 489 (9th Cir. 2000). “Impeachment strategy is a matter of trial tactics, and tactical decisions

are not ineffective assistance of counsel simply because in retrospect better tactics may have been

available.” Dell, 194 F. Supp. 2d at 1219; accord Millender v. Adams, 187 F. Supp. 2d 852, 872

(E.D. Mich. 2002) (Rosen, J.). The mere fact that other avenues of impeachment may have existed

does not render counsel ineffective. See Poyner v. Iowa, 990 F.2d 435, 438 (8th Cir. 1993); see also,

Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995) (internal quotation omitted) (counsel not

ineffective even though “other testimony might have been elicited from those who testified.”); United

States v. Kozinski, 16 F.3d 795, 817 (7th Cir. 1994) (counsel not ineffective where counsel could

have elicited additional impeachment information on cross-examination).

Here, the record shows that counsel ably presented extensive evidence on petitioner’s behalf,

and thoroughly cross-examined the prosecution’s witnesses. That some additional impeachment

information may have been available to counsel does not support a finding that counsel’s
30

performance was deficient. See Millender, 187 F. Supp. 2d at 872; Johnson v. Hofbauer, 159 F.

Supp. 2d 582, 607 (E.D. Mich. 2001) (Tarnow, J.). Defense counsel thoroughly cross-examined each

of the prosecution witnesses, eliciting weaknesses in their version of events and inconsistencies in

their testimony. The record shows that counsel’s cross-examination was more than adequate to meet

the Sixth Amendment standard for effective assistance of counsel. See, e.g., Sherron v. Norris, 69

F.3d 285, 290 (8th Cir. 1995); United States v. McKinney, 954 F.2d 471, 481 (7th Cir. 1992); Garcia

v. Kuhlmann, 897 F. Supp. 728, 730 (S.D.N.Y. 1995); Wolfe v. United States, 894 F. Supp. 1310,

1317 (D. Minn. 1995), aff’d, 92 F.3d 1190 (8th Cir. 1996).

Further, petitioner cannot establish prejudice. Counsel thoroughly impeached the victim’s

testimony at trial, and the jury nevertheless credited her version of events. The victim’s “credibility

was significantly impeached on cross-examination as it was, and the jury nevertheless chose to

believe h[er] testimony. It is therefore not reasonably probable that the result of the proceeding would

have been different had counsel introduced this evidence.” Gonzales v. Warren, No. 03-CV-74266,

2005 WL 1348701, at *12 (E.D. Mich. Apr. 14, 2005) (Komives, M.J.), report adopted, No. 03-CV74266 (E.D. Mich. May 25, 2005) (Roberts, J.); cf. United States v. Avellino, 136 F.3d 249, 257 (2d

Cir.1998) (on Brady claim based on suppression of impeachment evidence, “where the undisclosed

evidence merely furnishes an additional basis on which to challenge a witness whose credibility has

already been shown to be questionable or who is subject to extensive attack by reason of other

evidence, the undisclosed evidence may be cumulative, and hence not material.”).

Petitioner also contends that counsel was ineffective for failing to interview potential

witnesses. However, he has failed to provide the names of any specific witnesses or detail the

expected testimony that they would have given. It is petitioner’s burden to establish the elements
31

of his ineffective assistance of counsel claim. See United States v. Pierce, 63 F.3d 818, 833 (6th Cir.

1995) (petitioner bears the burden of establishing counsel’s ineffectiveness); Lewis v. Alexander, 11

F.3d 1349, 1352 (6th Cir. 1993) (same). Thus, “a petition for habeas corpus relief based on counsel’s

failure to call witnesses must present this evidence in the form of the actual testimony by the witness

or affidavits.” United States ex rel. Townsend v. Young, No. 01 C 0800, 2001 WL 910387, at *5

(N.D. Ill. Aug. 8, 2001) (citing United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991)); see also,

Pittman v. Florida, No. 8:05-cv-1700, 2008 WL 2414027, at *12 (M.D. Fla. June 11, 2008).

Similarly, “[a] defendant who alleges a failure to investigate on the part of his counsel must allege

with specificity what the investigation would have revealed and how it would have altered the

outcome of the trial.” United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). Because

petitioner has identified no specific defense witnesses counsel failed to interview or call, nor

identified what evidence these witnesses would have provided, petitioner has failed to meet his

burden of demonstrating counsel’s ineffectiveness.

Petitioner also contends that counsel was ineffective for failing to obtain prior to trial and

review with him the transcripts of the recorded telephone conversations. The record does not support

petitioner’s claim that counsel failed to obtain the transcripts prior to trial. As explained above in

connection with petitioner’s suppression of evidence claim, the record shows that the transcripts were

included in the discovery materials provided to petitioner by the prosecution. With respect to

counsel’s alleged failure to review the transcripts with petitioner prior to trial, petitioner has not

shown how he was prejudiced by this alleged failure. Counsel cross-examined the victim regarding

the conversations, see Trial Tr., dated 10/11/05, at 28-30, and questioned petitioner about the

conversations during petitioner’s own testimony, see id. at 113-15. Petitioner has not explained what
32

other testimony could have been offered had counsel reviewed the transcripts with him prior to trial.

Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim.

b. Failure to Move to Suppress Recorded Conversations

Petitioner next contends that counsel was ineffective for failing to move to suppress the

recorded telephone conversations based on the Fourth Amendment, the federal wiretapping statute,

and the Michigan eavesdropping statute. This claim is without merit, because the recordings of the

conversations were not subject to suppression on any of these bases.

Although the Fourth Amendment requires a warrant before the police may monitor a

telephone conversation between individuals who do not know they are being recorded, no warrant

is required when one of the participants in the conversation consents to the monitoring. It is well

established that “[a] telephone call can be monitored and recorded without violating the Fourth

Amendment so long as one participant in the call consents to the monitoring.” United States v.

Novak, 531 F.3d 99, 101 (1st Cir. 2008) (O’Connor, J., sitting by designation); see also, United

States v. Workman, 80 F.3d 688, 694 (2d Cir. 1996) (“Only a single participant in a conversation

need agree to monitoring in order to satisfy the requirements of the Fourth Amendment.”); cf. United

States v. White, 401 U.S. 745, 752 (1970) (surreptitious recording of in-person conversation does not

violate the Fourth Amendment where one party to the conversation consents to monitoring).

Similarly, the Michigan Supreme Court has held that the search provision of the Michigan

Constitution, MICH. CONST. art. 1, § 11, likewise does not prohibit the recording of telephone

conversations where one party to the conversation consents. See People v. Collins, 438 Mich. 8, 31-

40, 475 N.W.2d 684, 694-98 (1991).

Likewise, neither the federal wiretapping statute nor the Michigan eavesdropping statute
33

prohibited the recording of the conversations between the victim and petitioner. The federal

wiretapping statute explicitly provides that “[i]t shall not be unlawful . . . for a person acting under

color of law to intercept a wire, oral, or electronic communication, where . . . one of the parties to

the communication has given prior consent to such interception.” 18 U.S.C. § 2511(2)(c). Because

the victim consented, the recording did not violate the federal wiretapping statute. See United States

v. Porter, 29 Fed. Appx. 232, 238 (6th Cir. 2002). Similarly, the Michigan eavesdropping statutes

“do not prohibit . . . eavesdropping or surveillance not otherwise prohibited by law by a peace officer

of this state or of the federal government, or the officer’s agent, while in the performance of the

officer’s duty.” MICH. COMP. LAWS § 750.539g(a). Because monitoring by the police with the

consent of a participant is not “otherwise prohibited by law,” such monitoring does violate the

Michigan eavesdropping statutes. See People v. Morris, No. 232520, 2003 WL 21019244, at *1

(Mich. Ct. App. May 6, 2003) (per curiam); cf. In re Jenkins, 437 Mich. 15, 27 n.12, 465 N.W.2d

317, 323 n.12 (1991).

Attempting to overcome these conclusions, petitioner contends that the victim was not

capable of consenting, and the recording was “otherwise prohibited by law,” because a personal

protection order (PPO) issued by a Texas state court prohibited the victim from contacting petitioner.

Even if the victim’s phone call to petitioner violated the PPO, however, petitioner has offered no

caselaw, and I have uncovered none, suggesting that the recording of the conversation was rendered

illegal by the fact that the initiation of the conversation may have violated a PPO secured by the

victim. Under the Fourth Amendment, consent to monitoring is valid so long as the police did not

so pressure the consenting party as to overbear that party’s will. See United States v. Baynes, 400

F. Supp. 285, 292 (E.D. Pa. 1975). Petitioner does not contend the police engaged in any coercive
3

A copy of the PPO is attached to petitioner’s Application for Leave to File Motion to Submit

Newly Discovered Evidence in Support of Pending Motion to Remand filed in the Michigan Court of

Appeals, and included in this Court’s docket entry #11.

34

conduct which overbore the victim’s will. Likewise, under Michigan law the law enforcement

exception does not apply only where the “eavesdropping or surveillance” is “otherwise prohibited

by law.” MICH.COMP.LAWS § 750.539g(a). Even if the victim’s initial contact with petitioner was

“otherwise prohibited by law,” because the police had the victim’s consent the monitoring itself was

not “otherwise prohibited by law,” and thus the § 750.539g(a) exception is still applicable.

In any event, petitioner cannot show that the victim’s act of contacting him violated the PPO.

The PPO lists the victim as the applicant and petitioner as the respondent.3

 Section 4 of the PPO

provides that “respondent is” prohibited from doing certain things, including that “respondent is

prohibited from communication in any manner with a member of the family or household except

through the party’s attorney, or a person appointed by the Court, no phone calls.” (emphasis added).

Nothing in this language, or in any other language of the PPO, purports to restrict the

applicant’s–that is the victim’s–actions in any way. Texas law supports this conclusion. The actions

which may be prohibited by a court in a PPO are set forth in TEX. FAMILY CODE § 85.022. Before

a PPO may issue, however, a court must find that the respondent has committed “family violence”

and that family violence is likely to occur in the future. See id. § 85.001(a). The statute also

provides that “[a] protective order that requires the first applicant to do or refrain from doing an act

under Section 85.022 shall include a finding that the first applicant has committed family violence

and is likely to commit family violence in the future.” The PPO at issue in this case contains no

findings that the victim engaged in any acts of family violence against petitioner. Further, Texas law

provides that PPOs enjoining the actions of both the applicant and the respondent must be issued
35

separately, see id. § 85.003(a), (b), explicitly providing that “[a] court may not render one protective

order under Section 85.022 that applies to both parties.” Id. § 85.003(c). Petitioner does not allege

that a second protective order applicable to the victim was issued by any Texas court. Thus, even

if a violation of a PPO would otherwise affect the validity of the police monitoring, petitioner has

failed to show that the victim’s act of contacting him violated any PPO issued by the Texas courts.

Because a motion to suppress the telephone recordings would have been futile, petitioner

cannot show that counsel was ineffective for failing to move to suppress the recordings.

Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim.

c. Failure to Object

Finally, petitioner contends that counsel was ineffective for failing to object to the admission

of the other acts evidence and the prosecutor’s misconduct in her questioning of the victim. As

explained above, petitioner’s underlying evidentiary and prosecutorial misconduct claims are without

merit. Counsel cannot be deemed ineffective for failing to raise a meritless objection. See Bradley

v. Birkett, 192 Fed. Appx. 468, 475 (6th Cir. 2006); Anderson v. Goeke, 44 F.3d 675, 680 (8th Cir.

1995); Burnett v. Collins, 982 F.2d 922, 929 (5th Cir. 1993). Because petitioner’s underlying

prosecutorial misconduct and evidentiary claims are without merit, petitioner cannot show that he

counsel was ineffective for failing to object. Accordingly, the Court should conclude that petitioner

is not entitled to habeas relief on this claim.

I. Denial of Appeal (Claims XIII & XIV)

In his thirteenth and fourteenth claims, petitioner contends that he was denied his right to

appeal due to the late appointment of appellate counsel. Petitioner asserts that he in fact timely

requested appointment of appellate counsel, and that he was denied his right to appeal because when
36

counsel was appointed late he was limited to filing an application for leave to appeal, rather than an

appeal of right.

Under Michigan law, petitioner was required to file his request for counsel within 42 days

of the sentence. See MICH.CT.R.6.425(G)(1)(b); 7.204(A)(2). Petitioner was sentenced on October

27, 2005. Although he claims to have filed requests for appointment of counsel on that date and

again in November 2005, the trial court docket sheet does not reflect such a request, and the brief

filed by counsel in the Michigan Court of Appeals indicates that petitioner requested appointment

of counsel on February 28, 2006. See Def.’s Delayed App. for Leave to Appeal, in People v. Foster

(Mich. Ct. App.), at vii. Thus, the record belies petitioner’s claim that he timely requested counsel,

and that the delay in filing the appeal was the fault of the trial court.

In any event, petitioner cannot establish that he was prejudiced by the failure of counsel to

perfect a timely appeal of right, regardless of who was to blame, because petitioner was able to and

in fact did file an application for leave to appeal which was considered on the merits. In Walker v.

McKee, 366 F. Supp. 2d 544 (E.D. Mich. 2005) (Gadola, J.), the petitioner claimed that his appellate

counsel was ineffective for failing to timely file an appeal of right, and that prejudice from counsel’s

failure should be presumed. The Court rejected this claim, explaining:

Although Petitioner was not allowed to pursue an appeal of right due to his first

appellate counsel’s conduct, he was, through new counsel, able to file an application

for leave to appeal in the Michigan Court of Appeals to pursue his right of direct

appeal–and he in fact did so. Thus, his direct appeal cannot be considered “entirely

nonexistent.”

Furthermore, the record indicates that the Michigan Court of Appeals

considered the merits of Petitioner’s claims given that it denied his application for

leave to appeal “for lack of merit in the grounds presented.” Under these

circumstances, it cannot be said that Petitioner’s appeal was “presumptively

unreliable.” Although the Michigan court of Appeals did not address the merits of

the grounds raised in a written opinion, this Court cannot conclude that the Michigan

Court of Appeals’ evaluation should be presumed to be unreliable. That is, the Court
37

concludes that Petitioner is not entitled to a presumption of prejudice after the

Michigan Court of Appeals examined his claims through an application for leave to

appeal and determined they lacked merit.

Id. at 548-49. Similarly, in Maloof v. Jackson, No. 04-CV-73192, 2005 WL 2072087 (E.D. Mich.

Aug. 25, 2005) (Hood, J.), the petitioner claimed that his plea was invalid because he had been led

to believe that he had preserved his appeal of right, rather than only being allowed to appeal his plea

by leave. The Court, relying on Walker and similar cases, rejected petitioner’s claim, concluding that

“Petitioner had the benefit of appointed appellate counsel, and his application for leave to appeal was

reviewed on the merits by the Michigan Court of Appeals, the same court which would have

evaluated his claims on an appeal of right, applying the same standards of review. There is no basis

to presume that such review was inadequate or unreliable.” Id. at *8. And as the Supreme Court

explained in Halbert v. Michigan, 545 U.S. 605 (2005), “in determining how to dispose of an

application for leave to appeal, Michigan’s intermediate appellate court looks to the merits of the

claims made in the application.” Id. at 617. Because the Michigan Court of Appeals sits as a court

of error-correction, the court “is guided in responding to leave to appeal applications by the merits

of the particular defendant’s claims, not by the general importance of the questions presented,” id.

at 619, and therefore “the court’s response to the leave application by any of the specified

alternatives–including denial of leave–necessarily entails some evaluation of the merits of the

applicant’s claims.” Id. at 618.

In light of these decisions, petitioner cannot show that the Michigan Court of Appeals’s

failure to treat his application for leave to appeal as an appeal of right was contrary to, or an

unreasonable application of, clearly established federal law, even if he could show that he otherwise

timely requested the appointment of appellate counsel. Accordingly, the Court should conclude that
38

petitioner is not entitled to habeas relief on this claim.

J. Newly Discovered Evidence (Claim XII)

In his twelfth claim, petitioner contends that he is entitled to habeas relief on the basis of

newly discovered evidence. Specifically, petitioner contends that the Texas PPO constitutes new

evidence which would have supported suppression of the recorded telephone conversations. The

Court should conclude that petitioner is not entitled to habeas relief on this claim.

A writ of habeas corpus may be granted “only on the ground that [the petitioner] is in custody

in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Thus,

the existence of new evidence, standing alone, is not a basis for granting the writ. As the Supreme

Court has explained: “Claims of actual innocence based on newly discovered evidence have never

been held to state a ground for federal habeas relief absent an independent constitutional violation

occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400

(1993); see also, id. at 404 (claim of actual innocence is “not itself a constitutional claim, but instead

a gateway through which a habeas petitioner must pass to have his otherwise [procedurally] barred

constitutional claim considered on the merits.”) (emphasis added); Schlup v. Delo, 513 U.S. 298,

314-16 (distinguishing, in part, Herrera because in this case the petitioner “accompanie[d] his claim

of innocence with an assertion of constitutional error at trial.”); Townsend v. Sain, 372 U.S. 293, 317

(1963) (“Of course, such evidence must bear upon the constitutionality of the applicant’s detention;

the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a

ground for relief on federal habeas corpus.”), overruled in part on other grounds, Keeney v. TamayoReyes, 504 U.S. 1 (1992). Thus, the newly discovered evidence, standing alone, provides no basis

for habeas relief.
39

Further, even if this claim were otherwise cognizable, petitioner cannot show that the Texas

PPO constitutes newly discovered evidence of his innocence. As explained above in connection with

petitioner’s related ineffective assistance of counsel claim, nothing in the Texas PPO would have

provided a basis for suppressing the recorded telephone conversations. Contrary to petitioner’s

argument, no language in the PPO restricted the actions of the victim, and construing the language

of the PPO to restrict the victim’s actions would have violated the requirements of Texas law in

several respects. Accordingly, the Court should conclude that petitioner is not entitled to habeas

relief on this claim.

K. Evidentiary Hearing (Claims VII, XIII & XIV)

In his seventh, eighth, and fourteenth claims petitioner asserts that the state courts erred in

denying him evidentiary hearings in connection with his various state court proceedings. The Court

should conclude that these claims provide neither a basis for habeas relief nor a basis for an

evidentiary hearing in this Court.

1. State Court Denials of Evidentiary Hearing

To the extent petitioner’s claims assert the state court’s denials of an evidentiary hearing as

a substantive basis for habeas relief, the claims are not cognizable on habeas review. Nothing in the

Constitution requires a state to establish a system of postconviction review, and thus “an infirmity

in a state post-conviction proceeding does not raise a constitutional issue cognizable in a federal

habeas petition.” Gee v. Groose, 110 F.3d 1346, 1351-52 (8th Cir. 1997) (internal quotation omitted);

accord Dawson v. Snyder, 988 F. Supp. 783, 826 (D. Del. 1997) (citing Steele v. Young, 11 F.3d

1518, 1524 (10th Cir. 1993) and Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992)). As the

Sixth Circuit has explained:
40

[T]he Sixth Circuit has consistently held that errors in post-conviction

proceedings are outside the scope of federal habeas corpus review. See Kirby v.

Dutton, 794 F.2d 245, 246-47 (6th Cir.1986); Roe v. Baker, 316 F.3d 557, 571 (6th

Cir.2002). . . . [C]laims challenging state collateral post-conviction proceedings

“cannot be brought under the federal habeas corpus provision, 28 U.S.C. § 2254,”

because “ ‘the essence of habeas corpus is an attack by a person in custody upon the

legality of that custody, and ... the traditional function of the writ is to secure release

from illegal custody.’ ” Kirby, 794 F.2d at 246 (quoting Preiser v. Rodriguez, 411

U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)); see also Pennsylvania v.

Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“States have no

obligation to provide this avenue of relief, and when they do, the fundamental

fairness mandated by the Due Process Clause does not require that the State supply

a lawyer as well.” (citation omitted)). A due process claim related to collateral

post-conviction proceedings, even if resolved in a petitioner’s favor, would not

“result [in] . . . release or a reduction in . . . time to be served or in any other way

affect his detention because we would not be reviewing any matter directly pertaining

to his detention.” Kirby, 794 F.2d at 247. “Though the ultimate goal in” a case

alleging post-conviction error “is release from confinement, the result of habeas

review of the specific issue[ ] ... is not in any way related to the confinement.” Id. at

248. Accordingly, we have held repeatedly that “the scope of the writ [does not] reach

this second tier of complaints about deficiencies in state post-conviction

proceedings,” noting that “the writ is not the proper means” to challenge “collateral

matters” as opposed to “the underlying state conviction giving rise to the prisoner’s

incarceration.” Id. at 248, 247; see also Alley v. Bell, 307 F.3d 380, 387 (6th

Cir.2002) (“error committed during state post-conviction proceedings can not [sic]

provide a basis for federal habeas relief” (citing Kirby, 794 F.2d at 247)); Greer v.

Mitchell, 264 F.3d 663, 681 (6th Cir.2001) (“habeas corpus cannot be used to mount

challenges to a state’s scheme of post-conviction relief”).

Cress v. Palmer, 484 F.3d 844, 853 (6th Cir.2007). The trial court’s failure to hold an evidentiary

hearing, even if erroneous under state law, does not entitle petitioner to habeas relief. See Chaussard

v. Fulcomer, 816 F.2d 925, 932 (3d Cir. 1987); Edwards v. State of Kansas, 751 F. Supp. 197, 199

(D. Kan. 1990). In short, petitioner’s challenge to the state court post-conviction proceedings is not

cognizable on habeas review.

2. Entitlement to Evidentiary Hearing in this Court

Nor is petitioner entitled to an evidentiary hearing in this Court. In addressing whether an

evidentiary hearing is appropriate in a habeas corpus case, a court must consider two separate issues:
41

(1) is an evidentiary hearing necessary under Rule 8 of the Rules Governing Section 2254

Proceedings in United States District Courts, 28 U.S.C. foll. § 2254; and (2) whether a hearing is

permitted under 28 U.S.C. § 2254(e)(2). Even assuming that an evidentiary hearing were permitted

under § 2254(e)(2), such a hearing is not necessary here. In making the determination of whether

an evidentiary hearing is necessary under Rule 8, “courts focus on whether a new evidentiary hearing

would be meaningful, in that a new hearing would have the potential to advance the petitioner’s

claim.” Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir. 2000) (discussing Cardwell v. Greene, 152

F.3d 331, 338 (4th Cir. 1998)); see also, Alcorn v. Smith, 781 F.2d 58, 59-60 (6th Cir. 1986)

(applying pre-AEDPA law); cf. Townsend v. Sain, 372 U.S. 293, 312-13 (1963). As the Supreme

Court recently explained:

In deciding whether to grant an evidentiary hearing, a federal court must

consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.

Because the deferential standards prescribed by § 2254 control whether to grant

habeas relief, a federal court must take into account those standards in deciding

whether an evidentiary hearing is appropriate.

It follows that if the record refutes the applicant’s factual allegations or

otherwise precludes habeas relief, a district court is not required to hold an

evidentiary hearing

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citations and footnote omitted). Thus, “‘an

evidentiary hearing is not required on issues that can be resolved by reference to the state court

record.’” Id. (quoting Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998)).

Even assuming that an evidentiary hearing were permissible under § 2254(e)(2), such a

hearing is not necessary under Rule 8. Petitioner’s evidentiary hearing claims relate to his ineffective

assistance of counsel and denial of appeal of right claims. As the analysis of these claims above

shows, however, the claims can be resolved on the existing record. Petitioner’s ineffective assistance
42

claims fail because (a) there was no basis upon which to suppress the recorded telephone

conversations, (b) counsel thoroughly cross-examined and impeached the victim, and thus both

counsel was not deficient and further impeachment would not have altered the jury’s verdict, and (c)

any objections to the admission of other acts evidence or the prosecutor’s questioning of the victim

regarding the telephone conversations would have been futile. No evidence adduced at an

evidentiary hearing would alter these conclusions. Likewise, even if an evidentiary hearing could

develop evidence to show that petitioner timely requested the appointment of appellate counsel, no

evidence would overcome the fact that petitioner suffered no harm from the delay in appointment

because the application for leave to appeal was an adequate remedy. Accordingly, the Court should

conclude that an evidentiary hearing is not necessary. 

L. Recommendation Regarding Certificate of Appealability

1. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty Act, section 2253 provides that

a petitioner may not appeal a denial of an application for a writ of habeas corpus unless a judge

issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1). The statute further provides that

“[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As the Sixth Circuit has noted, this

language represents a codification of the Supreme Court’s decision in Barefoot v. Estelle, 463 U.S.

880 (1983), and “[t]he AEDPA thus makes no change to the general showing required to obtain a

certificate[.]” Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997); accord Slack

v. McDaniel, 529 U.S. 473, 483 (2000). Although the statute does not define what constitutes a

“substantial showing” of a denial of a constitutional right, the burden on the petitioner is obviously
43

less than the burden for establishing entitlement to the writ; otherwise, a certificate could never issue.

Rather, the courts that have considered the issue have concluded that “‘[a] substantial showing

requires the applicant to “demonstrate that the issues are debatable among jurists of reason; that a

court could resolve the issues (in a different manner); or that the questions are adequate to deserve

encouragement to proceed further.”’” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999) (quoting

Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot, 463 U.S. at 893 n.4));

accord Slack, 529 U.S. at 483-84. Although the substantive standard is the same, “[t]he new Act

does, however, require that certificates of appealability, unlike the former certificates of probable

cause, specify which issues are appealable.” Lyons, 105 F.3d at 1073. (citing 28 U.S.C. §

2253(c)(3)).

Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 2254

Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court

must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”

Rule 11(a), 28 U.S.C. foll. § 2254. The rule tracks § 2253(c)(3)’s requirement that any grant of a

certificate of appealability “state the specific issue or issues that satisfy the showing required by §

2253(c)(2),” Rule 11(a), but omits the requirement contained in the pre-amendment version of

Federal Rule of Appellate Procedure 22(b)(1) that the court explain “why a certificate should not

issue.” FED. R. APP. P. 22(b)(1) (version effective prior to 2009 amendment); see id., advisory

committee note, 2009 amendments. In light of the new Rule 11 requirement that the Court either

grant or deny the certificate of appealability at the time of its final adverse order, I include a

recommendation regarding the certificate of appealability issue here.

2. Analysis
44

If the Court accepts my recommendation regarding the merits of petitioner’s claims, the Court

should also conclude that petitioner is not entitled to a certificate of appealability, for the reasons set

forth in connection with the analysis of petitioner’s claims. As explained above, petitioner’s

evidentiary, sentencing guidelines, evidentiary hearing, and newly discovered evidence claims are

not cognizable on habeas review, and thus the resolution of these claims is not reasonably debatable.

The resolution of petitioner’s Blakely claim is not reasonably debatable because it is clear that

Blakely does not apply to the determination of the minimum sentence under Michigan’s

indeterminate sentencing scheme. With respect to petitioner’s Brady claim, the record shows that

transcripts and recordings of the telephone conversation were provided to petitioner, and nothing in

the record shows that a fully audible recording existed. There is thus no evidence that the

prosecution suppressed any evidence and the resolution of this claim therefore is not reasonably

debatable. Finally, the resolution of petitioner’s prosecutorial misconduct, ineffective assistance, and

denial of appeal claims is not reasonably debatable, for the reasons explained above. Accordingly,

the Court should deny petitioner a certificate of appealability.

M. Conclusion

In view of the foregoing, the Court should conclude that the state courts’ resolution of

petitioner’s claims did not result in a decision which was contrary to, or which involved an

unreasonable application of, clearly established federal law. Accordingly, the Court should deny

petitioner’s application for the writ of habeas corpus. If the Court accepts this recommendation, the

Court should also deny petitioner a certificate of appealability.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,
45

but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED.

R.CIV.P. 72(b). Failure to file specific objections constitutes a waiver of any further right of appeal.

Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505

(6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which

raise some issues but fail to raise others with specificity, will not preserve all the objections a party

might have to this Report and Recommendation. Willis v. Secretary of Health & Human Servs., 931

F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370,

1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served

upon this Magistrate Judge.

Any objections must be labeled as “Objection #1,” “Objection #2,” etc. Any objection must

recite precisely the provision of this Report and Recommendation to which it pertains. Not later than

fourteen days after service of an objection, the opposing party must file a concise response

proportionate to the objections in length and complexity. The response must specifically address

each issue raised in the objections, in the same order and labeled as “Response to Objection #1,”

“Response to Objection #2,” etc.

s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

Dated: 7/19/10

The undersigned certifies that a copy of the foregoing

order was served on the attorneys of record and by

electronic means or U.S. Mail on July 19, 2010.

s/Eddrey Butts 

Case Manager