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By Order entered this date, Sherry Burt has been substituted in place of Steve Rivard as the

proper respondent in this action.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GREGORY HAMILTON,

Petitioner,

CASE NO. 2:08-CV-13960

v. JUDGE DAVID M. LAWSON

MAGISTRATE JUDGE PAUL J. KOMIVES

SHERRY BURT,

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 ............................... 4

C. Failure to Comply with Stay Order ................................................ 6

D. Procedural Default ............................................................ 7

E. Standard of Review ............................................................ 9

F. Jury Claims (Claims I & II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. Jury Coercion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

a. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

b. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2. Jury Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

a. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

b. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

G. Ineffective Assistance of Counsel (Claims III & IV) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

2. Trial Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

a. Failure to Investigate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

b. Failure to Challenge Biased Jurors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

c. Failure to Challenge Habitual Offender Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

2. Appellate Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

H. Recommendation Regarding Certificate of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

1. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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

I. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

III. NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

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

habeas corpus and should deny petitioner a certificate of appealability.

II. REPORT:

A. Procedural History

1. Petitioner Gregory Hamilton is a state prisoner, currently confined at the Muskegon

Correctional Facility in Muskegon, Michigan.

2. On November 14, 2006, petitioner was convicted of carjacking, MICH.COMP.LAWS

§ 750.529a; first degree home invasion, MICH. COMP. LAWS § 750.110a(2); and interfering with a

communication device, MICH. COMP. LAWS § 750.540(1)(5), following a jury trial in the Oakland

County Circuit Court. On December 5, 2006, he was sentenced to concurrent terms of 20-60 years’

imprisonment each on the carjacking and home invasion convictions, and 1-15 years’ imprisonment

on the communication device conviction. These sentences were to be served consecutive to a

sentence for which petitioner was on parole at the time of the offenses.

3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through

counsel, the following claim:

WHERE THE TRIAL COURT INITIALLY TOLD THE JURY THERE WOULD

BE NO COURT THE NEXT DAY, BUT AT 4:30 P.M. IMMEDIATELY PRIOR

TO THE COMMENCEMENT OF DELIBERATIONS–AFTER AT LEAST ONE

JUROR HAD MADE PLANS FOR THE NEXT DAY–CHANGED THE COURT

SCHEDULE IN ADD[ING] THE NEXT DAY IF NO VERDICT WAS REACHED

BEFORE 5:00 P.M., THE 4:58 P.M. VERDICT WAS ESSENTIALLY A

COERCED AND HASTY VERDICT IN CONTRAVENTION OF MR.

HAMILTON’S CONSTITUTIONAL RIGHTS UNDER CONST. 1963, ART. 1, §

20 AND THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION.

The court of appeals found no merit to petitioner’s claim, and affirmed his conviction and sentence.

See People v. Hamilton, No. 275479, 2008 WL 109099 (Mich. Ct. App. Jan. 10, 2008) (per curiam).

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4. Petitioner sought leave to appeal this issue to the Michigan Supreme Court. The

Supreme Court denied petitioner’s application for leave to appeal in a standard order. See People

v. Hamilton, 480 Mich. 1191, 747 N.W.2d 306 (2008).

5. On September 15, 2008, petitioner, proceeding pro se, filed an application for the writ

of habeas corpus pursuant to 28 U.S.C. § 2254, raising as grounds for relief the claim petitioner

raised on direct appeal. On March 9, 2009, petitioner filed a motion to hold the case in abeyance

so that he could exhaust eight additional claims in the state courts. The Court granted petitioner’s

motion on March 31, 2009.

6. On June 22, 2009, petitioner filed a motion for relief from judgment in the trial court

pursuant to MICH. CT. R. 6.500-.508, raising the following two claims (rather than the eight

identified in his motion to stay):

I. MUST THIS COURT VACATE THE DEFENDANT’S CONVICTION

WHERE HIS TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE FOR FAILING TO MOVE TO STRIKE JURORS, FOR

FAILING TO CONDUCT AN INVESTIGATION, AND FOR FAILING TO

OBJECT TO HABITUAL OFFENDER.

II. MUST THIS COURT VACATE THE DEFENDANT’S CONVICTIONS

WHERE HIS APPELLATE COUNSEL SHOW [sic] PREJUDICE BY

FAILING TO ADDRESS TRIAL COUNSEL’S INEFFECTIVENESS AND

BY NOT ADDRESSING THE ISSUES PRESENTED IN ARGUMENT I,

ON DIRECT APPEAL OF RIGHT.

On April 8, 2010, the trial court denied petitioner’s motion for relief from judgment, concluding that

the claims were barred because petitioner had failed to establish good cause for his failure to raise

the claims on direct appeal, as required by MICH. CT. R. 6.508(D)(3). The Michigan Court of

Appeals and Michigan Supreme Court denied petitioner’s applications for leave to appeal in

standard orders, based on petitioner’s “failure to meet the burden of establishing entitlement to relief

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under MCR 6.508(D).” People v. Hamilton, 490 Mich. 969, 806 N.W.2d 733 (2011); People v.

Hamilton, No. 300075 (Mich. Ct. App. June 9, 2011).

7. On January 27, 2012, petitioner filed a motion to reinstate this action, and on

February 2, 2012, petitioner filed an amended application. As grounds for the writ, petitioner raises

the claim asserted on direct appeal, a substantive claim of juror bias, and the two claims petitioner

raised in his motion for relief from judgment.

8. Respondent filed her answer on August 2, 2012. She contends that petitioner’s jury

coercion, jury bias, and ineffective assistance of trial counsel claims are procedurally defaulted, and

that all of petitioner’s claims are without merit. Respondent also argues that the Court should

dismiss the petition based on petitioner’s failure to comply with the time limits set forth in the

Court’s order staying the case.

B. Factual Background Underlying Petitioner’s Conviction

Petitioner’s convictions arise from an incident in which he broke into a home, demanded the

victim’s keys, and took her car. The evidence adduced at trial was accurately summarized in

petitioner’s brief to the Michigan Court of Appeals on direct appeal:

The case arose from events commencing shortly before 1:00 A.M. on August

16, 2006 at an apartment on Eight Mile Road in Farmington Hills.

Arlene Alvey testified that she had been sleeping in her apartment at a senior

complex and was awakened by a loud noise; she leapt up and saw a man standing by

the foot of her bed. It was a warm night and she had left her window open. No

lights were on in the bedroom, but she was able to see that the man was African

American, of medium build, wearing dark clothing, probably a long-sleeve shirt, and

wearing a white knit mask over his face. Ms. Alvey was angry and demanded to

know what he was doing there and what he wanted; the man calmly, but forcefully,

answered that he would not hurt her and that he just wanted her car keys. She

thought “no way,” and remained angry. She asked him why, and he responded that

he was being chased and he had to get out of there quickly.

Ms. Alvey started to walk towards her purse to get the keys and the man told

her that he did not want her money, just the keys; she then pulled back away from

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her purse and the man told her she was stalling. She denied to the man that she was

stalling, but she admitted that she was and did not want to give up her keys; she was

still angry. The man grabbed her wrist, told her he had a gun and that there was a

second person waiting outside. She then dumped a basket of extra keys on the bed

and picked out a set of keys for the perpetrator.

The man said she had a telephone in her bedroom; she denied it, not wanting

him to take the phone that was behind her lamp and not readily visible, and directed

him into the living room where she gave him the handset from a portable telephone.

She then told him to leave and she walked to the door; the man followed and either

she or the man opened the door. He asked her which car was hers, and she vaguely

waved to the parking lot and said the station wagon; she did not want to specify

which car was hers, so she was being “difficult” with him. The man then activated

her car alarm. She pushed him out of the apartment and locked the door, then

secured her window and called 9-1-1 from her cell-phone. She looked out her

kitchen window and saw that her car was missing from the parking lot. The

perpetrator had been inside her apartment for about fifteen to twenty minutes, and

she called the police at about 1:10 A.M.

She described her vehicle, a 2003 Saturn, to the operator, and provided some

descriptive information about the perpetrator. The police arrived in about five to

seven minutes, and she wrote out a statement. She was worried about her car, but,

after her statement was completed an officer told her that the perpetrator had been

caught. Ms. Alvey said that during the crime she thought there was something

familiar about the perpetrator, and thought he seemed too familiar with the layout of

her apartment. Later, after she thought about it, she had a sense of knowing the

perpetrator. She said she told the detective that the perpetrator’s voice sounded

familiar, and she thought it might have been the son of the woman who lived in the

neighboring apartment.

Ms. Alvey testified that she had spoke with Mr. Hamilton twice before when

he was visiting his mother, who previously lived next door to Ms. Alvey. The first

time was “much, much in advance” of the incident, perhaps one month before, when

they had a conversation lasting about ten or fifteen minutes. He mentioned that he

was a recording artist and planned to record a song for his mother’s church. Ms.

Alvey said that when her car was recovered there was a CD found inside that was not

hers; she thought the CD had a song with “Jesus” in its title. Her telephone handset

was also recovered in the car.

Ms. Alvey said Mr. Hamilton’s mother had moved-out about one or two

weeks before this incident. While the mother had lived next-door Mr. Hamilton

visited her every week, and Ms. Alvey said [she] had heard him speaking with family

members on the outside patio many times.

Livonia police officer Joseph Robertson testified that he was on patrol on

August 16, 2006 in the area of Five Mile and Newburgh roads in Livonia and heard

a dispatch at about 1:20 A.M. about the home invasion in Farmington Hills and the

stolen vehicle. He was about four and one-half miles from the scene of the crime.

He received information that the stolen car was a Saturn, received the plate number,

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and a description that the suspect was a black male, wearing dark clothing and a

white mask. Officer Robertson said he saw a vehicle driving southbound on

Newburgh about five or ten minutes after receiving the dispatch. He followed the

vehicle for about three and one-half miles while waiting for backup, and then

effected a felony traffic stop. Mr. Hamilton, who was driving the vehicle, was

removed from the car, taken to the ground and handcuffed. Officer Robertson said

that Mr. Hamilton made several comments, including that he did not “steal that car

from that lady [pause] or that guy,” and said he had just purchased the car from a

crack head for $20.00. Farmington Hills police arrived and Mr. Hamilton was turned

over to them.

Farmington Hills police officer Brian Kersanty testified that he got the radio

dispatch about the home invasion and responded to Ms. Alvey’s apartment; she gave

him a description of the perpetrator as being a black male, with dark clothing, and

a white mask. He subsequently went to Joy and Newburgh where the traffic stop

occurred; Mr. Hamilton was in custody. Officer Kersanty saw Ms. Alvey’s

telephone handset on the passenger seat of the car.

Officer Kersanty said that later, during the booking process, he saw Mr.

Hamilton attempting to conceal his T-shirt between a bench and the wall. The

officer asked Mr. Hamilton what he was doing and Mr. Hamilton told him the T-shirt

was garbage and to throw it out; the officer put the shirt on the counter and, when

looking at it later, noticed what he said were eye- and mouth-holes cutout of the

shirt, matching Ms. Alvey’s description of the mask. Mr. Hamilton had been

wearing a short-sleeve Polo shirt and the T-shirt, and had taken off both at the same

time during the booking-process. Ms. Alvey had identified that T-shirt.

Mr. Hamilton did not testify and no defense witnesses were presented.

Def.-Appellant’s Br. on Appeal, in People v. Hamilton, No. 275479 (Mich. Ct. App.), at 1-6

(citations to trial transcript omitted); see also, Respondent’s Answer, at 9-12.

C. Failure to Comply with Stay Order

Respondent first contends that petitioner’s claims should be dismissed for failure to comply

with the Court’s stay order. Respondent argues that the Court’s Order, entered on April 1, 2009,

conditioned the stay on petitioner filing a motion for relief from judgment within 30 days. Contrary

to this directive, respondent argues, petitioner waited 83 days to file his motion on June 22, 2009.

Respondent is correct that a district court may dismiss a petition based on a petitioner’s failure to

comply with the stay order. See Grove v. Lafler, No. 5:07-CV-11703, 2012 WL 201293, at *1 (E.D.

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Mich. June 5, 2012) (O’Meara, J.). A court may also, however, exercise its discretion to overlook

a petitioner’s failure to comply, such as were the failure was not in bad faith and the state court

motion was still filed within a reasonable time. See Newson-Bey v. McGuiggin, No. 2:03-CV-70958,

2011 WL 124460, at *3 (E.D. Mich. Jan. 14, 2011) (Tarnow, J.). Here, the Court did not explicitly

set forth a period of time in which petitioner was to file his state court motion for relief from

judgment. The Court merely ordered that the petition be “HELD IN ABEYANCE pending the

exhaustion of petitioner’s new claims in Michigan state court,” and further required that petitioner

“file an amended petition in this Court within twenty-eight (28) days after the conclusion of the state

court proceedings.” Order, dated 4/1/09, at 6. In granting the stay, the Court cited to Palmer v.

Carlton, 276 F.3d 777 (6th Cir. 2002), which stated that “normally 30 days” in which to file in state

court is appropriate. See Palmer, 276 F.3d at 781. The Court’s order did not explicitly cite Palmer

for this time limit, however, only for the more general proposition that the Court could impose

reasonable time limits on petitioner’s return to state court and then back to this Court. See Order,

at 5-6. Thus, there was not an explicit time limit imposed by the Court, only one which could be

derived by implication from the Court’s citation to Palmer. And even if this is deemed to have set

forth a time limit for petitioner, it does not appear that petitioner’s failure to comply with the Court’s

order was done in bad faith, and as in Newson-Bey the state court motion was filed within two

months of the deadline imposed by the Court. In light of the facts that the Court’s time limit was

not explicit and petitioner did not fail to comply in bad faith, the Court should decline respondent’s

request to dismiss the petition based on petitioner’s failure to comply with the stay order.

D. Procedural Default

Respondent contends that petitioner’s first three claims–all but petitioner’s ineffective

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assistance of appellate counsel claim–are barred by petitioner’s procedural default. Specifically,

respondent contends that petitioner’s first claim is barred because petitioner did not object at trial;

that petitioner’s second claim is barred because petitioner never raised it in the state courts and is

now barred from doing so; and that petitioner’s third claim is barred because petitioner failed to raise

the claim on direct appeal. Under the procedural default doctrine, a federal habeas court will not

review a question of federal law if the state court’s decision rests on a substantive or procedural state

law ground that is independent of the federal question and is adequate to support the judgment. See

Coleman v. Thompson, 501 U.S. 722, 729 (1991). However, “a procedural default does not bar

consideration of a federal claim on either direct or habeas review unless the last state court rendering

a judgment in the case ‘clearly and expressly’ states that its judgment rests on the procedural bar.”

Harris, 489 U.S. at 263. Furthermore, “only a ‘firmly established and regularly followed state

practice’ may be interposed by a State to prevent subsequent review . . . of a federal constitutional

claim.” Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341,

348-51 (1984)); see also, Calderon v. United States Dist. Ct. for the E. Dist. of Cal., 96 F.3d 1126,

1129 (9th Cir. 1996) (internal quotation omitted) (“For the procedural default doctrine to apply, a

state rule must be clear, consistently applied, and well-established at the time of the petitioner’s

purported default.”).

Although respondent is correct that petitioner’s claims are defaulted on this basis, it is

nevertheless necessary to consider the claims on the merits. Petitioner contends that his appellate

counsel was ineffective for failing to raise his defaulted claims on direct appeal. If petitioner’s

position is correct, counsel’s ineffectiveness may constitute cause to excuse any procedural default.

See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Murray v. Carrier, 477 U.S. 478, 488 (1986).

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To demonstrate that appellate counsel was ineffective petitioner must show, inter alia, that his

claims would have succeeded on appeal. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000);

McCleese v. United States, 75 F.3d 1174, 1180 (7th Cir. 1996). Given that the cause and prejudice

inquiry merges with an analysis of the merits of petitioner’s defaulted claims, it is better to simply

consider the merits of these claims, even if they are defaulted. See Jamison v. Collins, 100 F. Supp.

2d 647, 676 (S.D. Ohio 2000); Watkins v. Miller, 92 F. Supp. 2d 824, 832 (S.D. Ind. 2000); cf.

Strickler v. Greene, 527 U.S. 263, 282 (1999) (considering merits of petitioner’s habeas claims

where inquiry into the merits mirrored cause and prejudice inquiry).

E. 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.

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

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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 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).

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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.).

F. Jury Claims (Claims I & II)

Petitioner’s first two claims raise challenges to the jury. In Claim I, petitioner contends that

the jury’s verdict was a result of coercion by the trial court. In Claim II, he contends that several

of the jurors in his case were biased. The Court should conclude that petitioner is not entitled to

habeas relief on these claims.

1. Jury Coercion

Petitioner first contends that the jury’s verdict resulted from the coercive influence of the

trial court. The Court should reject this claim.

a. Clearly Established Law

“Any criminal defendant . . . being tried by a jury is entitled to the uncoerced verdict of that

body.” Lowenfeld v. Phelps, 484 U.S. 231, 241 (1988). When considering a claim that the trial

court’s actions or instructions coerced the jury’s verdict, a reviewing court must apply a totality-of2:08-cv-13960-DML-PJK Doc # 22 Filed 11/21/12 Pg 11 of 29 Pg ID 861
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the circumstances test. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (citing Lowenfeld,

484 U.S. at 248-50); Gibson v. United States, 271 F.3d 247, 258 (6th Cir. 2001), overruled in part

on other grounds by United States v. Leachman, 309 F.3d 377 (6th Cir. 2002). Under the AEDPA,

the question is not whether this Court would find the trial court’s actions coercive; rather, the

question is whether the state courts were reasonable in finding no coercion. See Early, 537 U.S. at

11.

b. Analysis

During jury selection, which occurred on a Tuesday, the trial court informed the jury that

there would be no court on Wednesday and, if the case went beyond the day, the jurors would

therefore be required to return on Thursday. Juror Leach, a doctor, indicated that this was

inconvenient for her because although she was off on Tuesday and Wednesday, she had a shift

scheduled for Thursday that would be difficult to have covered. The judge indicated that he did not

think it would be a problem to have the doctor’s shift covered, and that he would call the hospital

and talk to the legal department if it became necessary. See Trial Tr., at 54-55. Juror Leach

indicated that “[t]hat would be fine.” Id. at 55. At the conclusion of the case, after the judge had

instructed the jury, he informed the jurors that they would continue with their deliberations on

Wednesday, rather than Thursday. The following exchange occurred:

THE COURT: I know tomorrow is the day that you have off but we have a

juror who can’t be here on Thursday. Otherwise, I have to

make a call to the hospital director on her behalf. Is there

anyone who cannot come in tomorrow morning and

deliberate on this case? If you can’t, it’s understandable. But

I would like – what?

JUROR LEACH: I made other arrangements.

THE COURT: Be here anyway. All of you be here tomorrow morning at

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8:30 – strike that, 9:00. Be here tomorrow at 9:00 and start

your discussion. By the way, its only 4:30. We’re going to

keep you for a half hour. You can start deliberating.

Trial Tr., at 271-72. The jury retired to deliberate at 4:30, and returned with a verdict at 4:58. See

id. at 273.

The Michigan Court of Appeals rejected petitioner’s claim that the trial court’s action in

instructing the jury to return on Wednesday rather than Thursday was coercive. After setting forth

the correct legal standard, see Hamilton, 2008 WL 109099, at *1 (“Claims of coerced verdicts are

reviewed on a case-by-case basis. We must review the facts and circumstances of the case, as well

as the specific language used by the trial court, to determine whether the defendant was denied a fair

trial.”), the court of appeals explained that “[t]he trial court did not inform the jury expressly or by

implication that it must reach a verdict on Tuesday, or it would have no further opportunity to

deliberate,” nor did the court “threaten to require the jury, which had been working the entire day,

to deliberate into the early hours of the morning.” Id. “Rather,” the court explained, “the trial court

made a reasoned decision, based on the availability of the jurors, to require the jury to return the next

day if necessary.” Id.

Here, “it is at least reasonable to conclude that there was not [jury coercion], which means

that the state court’s determination to that effect must stand.” Early, 537 U.S. at 11. “[A] [trial]

court’s statement regarding the ability of the jury to deliberate on certain days is not necessarily

coercive.” United States v. Ratliff, 63 Fed. Appx. 192, 195 (6th Cir. 2003). As the court of appeals

observed, nothing in the trial court’s action suggested that the jury had to reach a verdict at all, or

had to do so within a specified period of time. The court merely informed the jury that it would

return on Wednesday, rather than Thursday as originally planned. This was based on the trial

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court’s well-founded belief that Juror Leach would have a problem returning on Thursday, but not

on Wednesday. Although Juror Leach indicated that she had made other plans, when instructed to

return on Wednesday anyway she did not indicate that she would be unable to do so. Further, the

trial judge had previously indicated that he would call the hospital on her behalf if it became

necessary. Although the jury returned a verdict shortly after it had begun deliberations, the case was

not complex and there was overwhelming evidence of petitioner’s guilt, and in any event “the jury’s

speed in reaching a verdict is irrelevant to whether an instruction was coercive.” Ratliff, 63 Fed.

Appx. at 196.

The Seventh Circuit’s decision in United States v. Crotteau, 218 F.3d 826 (7th Cir. 2000),

is instructive. In that case, after the jury had been deliberating for some time, it sent a note to the

court asking for a definition of reasonable doubt. The court sent a note in response to the jury’s

question at 4:45 p.m. Included in the response was an instruction that the jury should “join us in

court at 6:00 p.m. for adjournment until 9:00 a.m. tomorrow.” Id. at 835. At 5:30 p.m., the jury

indicated that it had reached a verdict. The Seventh Circuit rejected the defendant’s claim that this

note coerced the jury’s verdict, explaining:

We hold that the language that the district court used in its note regarding the

times for adjournment for the day and re-adjournment for the next day did not, in any

manner, coerce the jury into hastily reaching a guilty verdict. The note was neutral

and favored neither the prosecution nor the defense; instead, the note merely

responded to the jury’s earlier question requesting a definition of reasonable doubt

and advised the jury of the court’s schedule.

This court has previously stated our approval of a schedule in which a judge

adjourns “the jury’s deliberations at a reasonable hour and require[s] them to come

back the next day.” United States v. Feekes, 879 F.2d 1562, 1567 (7th Cir.1989).

Although the jury came back with a guilty verdict forty-five minutes after receiving

the note from the trial court, there is no evidence that it did so because it was coerced

by the trial judge into reaching a guilty verdict. Thus, we are of the opinion that the

court did not commit plain error in submitting the note to the jury.

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Id. The circumstances here are the same: the trial judge’s indication that the jury would return on

Wednesday did not favor the prosecution or defense, nor did it suggest to the jury that it had to reach

a verdict by a certain time. It merely advised the jury of the court’s schedule.

Also instructive is this Court’s decision in Love v. Ludwick, No. 09-10014, 2012 WL 993915

(E.D. Mich. Mar. 23, 2012) (Lawson, J.). In that case, during deliberations a juror informed the

court that if he had to return the following day to continue deliberations he would have to forfeit a

paid vacation. The trial court announced that if a verdict was not reached by the end of the day,

deliberations would be suspended until the juror returned from his vacation. The juror returned a

verdict later in that morning. See id. at *10. The Michigan Court of Appeals rejected the

petitioner’s claim that the trial court’s scheduling announcement coerced the jury’s verdict, see id.,

and this Court found that determination to be reasonable on habeas review. The Court reasoned that

“[t]here was no coercive deadlocked jury instruction,” and “[t]here was no instruction setting time

limits or deadlines for a verdict.” Id. at *11. Further, even if the jurors believed they might have

to come back, the Court reasoned, “the petitioner cannot show coercion, for it would be just as likely

in such a circumstance that a jury would acquit a defendant or inform the trial court that they were

wholly unable to reach any verdict as it would be for a jury to convict a defendant.” Id.

Crotteau and Love are directly on point, and demonstrate the reasonableness of the court of

appeals’s determination in petitioner’s case. Because it was “at least reasonable” for the Michigan

Court of Appeals “to conclude that there was not [jury coercion], . . . the state court’s determination

to that effect must stand.” Early, 537 U.S. at 11. Accordingly, the Court should conclude that

petitioner is not entitled to habeas relief on this claim.

2. Jury Bias

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Petitioner next contends that several of the jurors seated in his case were biased. The Court

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

a. Clearly Established Law

The Sixth Amendment guarantees the right to a trial by an impartial jury. See Duncan v.

Louisiana, 391 U.S. 145, 147-149 (1968). The constitutional standard of fairness requires that a

defendant in a criminal case have a panel of impartial, “indifferent” jurors. See Morgan v. Illinois,

504 U.S. 719, 726 (1992); Irvin v. Dowd, 366 U.S. 717, 722 (1961). A habeas court’s review of a

state court’s determination of jury impartiality is highly deferential. See Lucero v. Kirby, 133 F.3d

1299, 1308 (10th Cir. 1998) (discussing Mu’Min v. Virginia, 500 U.S. 415, 422-28 (1991)); Daniels

v. Burke, 83 F.3d 760, 766 (6th Cir. 1996). Thus, “to establish a constitutional violation based on

the trial court’s refusal . . . to dismiss the venire panel, petitioner ‘must demonstrate either that the

trial resulted in actual prejudice or that it gave rise to a presumption of prejudice because it involved

“such a probability that prejudice will result that it is deemed inherently lacking in due process.”’”

Lucero, 133 F.3d at 1308 (quoting Brecheen v. Reynolds, 41 F.3d 1343, 1350 (10th Cir. 1994)

(quoting Estes v. Texas, 381 U.S. 532, 542-43 (1965))); cf. Gall v. Parker, 231 F.3d 265, 308 (6th

Cir. 2000)).

b. Analysis

Petitioner contends that several jurors were biased because they each indicated that they had

been the victim of a robbery or carjacking, or knew someone who had been a victim. Specifically,

petitioner points to: Juror Sgambati, who indicated that his car had been stolen in 1991, see Trial

Tr., dated 11/14/06, at 22; Juror Hill, who indicated that her car had been broken into, see id. at 65;

Juror Babich, who indicated that some property had been stolen from his best friend, see id. at 84;

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Juror Davidson, who indicated that her husband’s car had been broken into on their driveway and

some property removed, see id. at 99; and Juror Byk, who indicated that she had property taken from

her car eight years prior to the trial and some property taken from her yard six months before the

trial, id. at 110. Petitioner also points to the fact that Juror Babich indicated that her sister worked

in the Child Welfare Division of the Tuscola County Prosecutor’s Office, see id. at 84, and that Juror

Davidson indicated that she knew a Macomb County prosecutor, see id. at 99. Petitioner cannot

show, based on these responses, that any of the seated jurors was biased against him. The crimes

suggested by the jurors, although all involving theft, were quite different from the crime charged

against petitioner. Petitioner was charged with breaking into the victim’s home and taking her car

keys by force. On the contrary, each of the challenged jurors related theft incidents that did not

involve home invasion or threats of force. Further, each of the seated jurors stated his or her

experiences would not influence the verdict, and that he or she could decide the case based solely

on the evidence presented at trial. See id. at 22, 65, 84, 99, 110. The Court presumes that these

statements were truthful, and petitioner has pointed to nothing to call into question the sincerity of

the jurors’ assurances. See Patton v. Yount, 467 U.S. 1025, 1036 (1984) (question in case of juror

bias is whether juror swore “that he could set aside any opinion he might hold and decide the case

on the evidence, and should the juror’s protestation of impartiality have been believed.”); Howard

v. Davis, 815 F.2d 1429, 1431 (11th Cir. 1987) (habeas relief not warranted on petitioner’s claim

of juror bias where juror stated he could be impartial despite his relationship with the victim). The

fact that jurors were victims of only superficially similar crimes, standing alone, does not support

a finding of bias. See United States v. Lopez, 445 Fed. Appx. 190, 193 (11th Cir. 2011); United

States v. Mitchell, 568 F.3d 1147, 1152-53 (9th Cir. 2009); Gonzales v. Thomas, 99 F.3d 978, 990-

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91 (10th Cir. 1996). “Being the victim of a crime is not alone grounds to remove a juror.” United

States v. Gibbs, 125 F. Supp. 2d 700, 709 (E.D. Pa. 2000), aff’d, 77 Fed. Appx. 107 (3d Cir. 2003).

Further, the fact that one juror’s sister worked in the child welfare department of another

prosecutor’s office, and that one juror was friends with a prosecutor in another county, does not

demonstrate bias. See Baze v. Parker, 371 F.3d 310, 326 (6th Cir. 2004); McQueen v. Scroggy, 99

F.3d 1302, 1319-20 (6th Cir. 1996); United States v. West, 458 F.3d 1, 8-9 (D.C. Cir. 2006); United

States v. Graves, 418 F.3d 739, 743 (7th Cir.2005). “Courts will not presume bias simply because

a juror works in law enforcement, is related to someone working in law enforcement or is acquainted

with law enforcement personnel.” King v. Hedgpeth, No. CIV S-08-1524, 2010 WL 2698609, at

*21 (E.D. Cal. July 07, 2010) (citing United States v. Le Pera, 443 F.2d 810, 812 (9th Cir.1971). 

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

G. Ineffective Assistance of Counsel (Claims III & IV)

Petitioner next contends that he was denied the effective assistance of both trial and appellate

counsel. 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. 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

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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 test, a strong presumption

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

id. at 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. It is petitioner’s burden to establish the

elements 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).

As the Supreme Court has recently explained, Strickland establishes a high burden that is

difficult to meet:

“Surmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. ----, ----, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An

ineffective-assistance claim can function as a way to escape rules of waiver and

forfeiture and raise issues not presented at trial, and so the Strickland standard must

be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the

integrity of the very adversary process the right to counsel is meant to serve.

Strickland, 466 U.S., at 689-690, 104 S.Ct. 2052. Even under de novo review, the

standard for judging counsel’s representation is a most deferential one. Unlike a later

reviewing court, the attorney observed the relevant proceedings, knew of materials

outside the record, and interacted with the client, with opposing counsel, and with

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Because these claims were not addressed on the merits by the Michigan courts, the “double

deference” normally given ineffective assistance claims under § 2254(d)(1), see Harrington, 131 S. Ct. at

788, is not applicable here. Thus, I consider only whether counsel was ineffective under the Strickland

standard.

20

the judge. It is “all too tempting” to “second-guess counsel’s assistance after

conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell v. Cone,

535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell,

506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether

an attorney’s representation amounted to incompetence under “prevailing

professional norms,” not whether it deviated from best practices or most common

custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.

Harrington v. Richter, 131 S. Ct. 770, 788 (2011).2

2. Trial Counsel

Petitioner contends that trial counsel was ineffective for failing to investigate the case fully,

failing to challenge the biased jurors, and failing to object to his habitual offender status at

sentencing. The Court should conclude that petitioner is not entitled to habeas relief on these claims.

a. Failure to Investigate

Petitioner contends that counsel was ineffective for failing to investigate his claim that he

purchased the car from a “crack head” for $200.00, and in particular for failing to investigate the fact

that the car was not fingerprinted. This claim is without merit. In order to discharge his or her duty

to investigate, counsel must “make reasonable investigations or [ ] make a reasonable decision that

makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. In deciding what

investigations to undertake, “reasonably diligent counsel may draw a line when they have good

reason to think further investigation would be a waste” Rompilla v. Beard, 545 U.S. 374, 383 (2005).

Further, “if the attorney had ‘no reason to question the authenticity, accuracy, or relevance of’

particular items of the prosecution’s evidence, the attorney’s choice not to investigate those aspects

of that evidence is not unreasonable.” Eady v. Morgan, 515 F.3d 587, 598 (citing United States v.

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Cronic, 466 U.S. 648, 664 (1984)). In short, “an attorney is under no duty to investigate frivolous,

implausible, or meritless defenses.” United States v. Carr, 740 F.2d 339, 349 (5th Cir. 1984); see

also, Vargas v. Director, Dep’t of Corrections, 141 Fed. Appx. 556, 557 (9th Cir. 2005); Hammonds

v. Allen, 849 F. Supp. 2d 1262, 1307 (M.D. Ala. 2012) (counsel is not required “to exhaust every

lead, no matter how implausible or unlikely to bear fruit.”).

Here, petitioner’s defense was so implausible that counsel’s decision to not further

investigate the lead was reasonable. Petitioner claimed that, between the time the car was stolen and

the time he was discovered driving it, he purchased it from another person. Apart from the inherent

implausibility of the story and the failure of petitioner to identify the person from whom he

supposedly purchased the vehicle, this claim was implausible based on the timing of events. The

victim testified that she phoned the police as soon as the intruder stole her car, see Trial Tr., at 152-

53. Officer Robertson located petitioner within if 5-10 minutes of receiving the call, several miles

away from the scene. See id. at 191. It was implausible on its face that there was sufficient time for

the alleged sale to have occurred. Further, petitioner’s claim was implausible in light of the fact that

the thief who allegedly sold him the car just happened to steal the car from the former neighbor of

petitioner’s mother. In light of the implausibility of petitioner’s claim, petitioner cannot show that

counsel was deficient in failing to investigate the claim further. With respect to the fingerprint issue,

counsel did question Officer Kersanty whether the phone receiver found in the car was tested for

fingerprints, see id. at 221. There is no reason to believe that other fingerprints would have been

recovered, and there is no question that petitioner’s fingerprints would have been found had the car

been tested.

Further, even if counsel should have investigated further, petitioner cannot show that he was

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prejudiced. Petitioner does not point to any particular evidence that a further investigation would

have uncovered. He does not provide the name of the person who sold him the car or an affidavit

from this person, nor does he suggest that there were any witnesses to the sale of the car. As noted

above, “it is petitioner’s burden to establish the elements of his ineffective assistance of counsel

claim.” Pierce, 63 F.3d at 833. Thus, “[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). Here, petitioner has pointed to nothing suggesting that counsel could have uncovered any

evidence to support his claim, much less evidence sufficiently strong to raise a reasonable

probability that the result of the proceeding would have been different. Petitioner was identified by

the victim, who knew petitioner from his visits to his mother, the victim’s neighbor, was found

driving the victim’s car a very short time after the robbery, and had a white t-shirt with eye and

mouth holes cut out of it, consistent with the victim’s testimony concerning the mask worn by the

perpetrator. In light of this strong evidence of guilt and petitioner’s failure to point to any specific

evidence that further investigation could have uncovered, petitioner cannot show that counsel was

deficient in failing to investigate further or that he was prejudiced by counsel’s failure. Accordingly,

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

b. Failure to Challenge Biased Jurors

Petitioner next contends that counsel was ineffective for failing to challenge the biased

jurors. The Court should reject this claim. First, it is doubtful that petitioner can establish that trial

counsel’s performance was deficient under the high standard applicable to ineffective assistance

claims.. “[J]ury selection is a process that inherently falls within the expertise and experience of

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trial counsel.” Palacio v. State, 511 S.E.2d 62, 67 (S.C. 1999) (citing cases). Because of this,

counsel’s decisions in the jury selection process are the type of strategic decisions which are

particularly difficult to attack. See Romero v. Lynaugh, 884 F.2d 871, 878 (5th Cir. 1989); Cordova

v. Johnson, 993 F. Supp. 473, 530 (W.D. Tex.) (footnote omitted) (internal quotation omitted)

(“Selecting a jury is more art than science. There is nothing unreasonable or professionally deficient

in a defense counsel’s informed decision to rely upon his own reading of venire members’ verbal

answers, body language, and overall demeanor[.]”), aff’d, 157 F.3d 380 (5th Cir. 1998). Here, the

record shows that counsel conducted a vigorous voir dire, and exercised numerous peremptory

challenges. See Trial Tr., dated 11/14/06, at 58, 70, 75, 83, 85, 88, 91, 94, 97, 98, 100, 103. Further,

although counsel did not challenge any jurors for cause, two jurors who indicated partiality in favor

of the prosecution were removed for cause, one at the behest of the prosecutor and one by the trial

judge. See id. at 64, 106. Petitioner has failed to offer anything to show that counsel’s decision to

retain the seated jurors was anything other than a reasonable strategic decision.

More importantly, even if petitioner could show that counsel’s performance was deficient,

he cannot show that he was prejudiced by counsel’s failure to seek removal of these jurors. In order

to establish prejudice attributable to a counsel’s failure to remove a juror, a defendant must show

that the juror was actually biased. See Miller v. Francis, 269 F.3d 609, 616 (6th Cir. 2001); Hughes

v. United States, 258 F. 3d 453, 458 (6th Cir. 2001); Irons v. Lockhart, 741 F.2d 207, 208 (8th Cir.

1984); Parker v. Turpin, 60 F. Supp. 2d 1332, 1362 (N.D. Ga. 1999); Odle v. Calderon, 919 F. Supp.

1367, 1389 (N.D. Cal. 1996). Here, as discussed above, petitioner has failed to show that any of the

seated jurors was actually biased. Thus, petitioner is not entitled to habeas relief on this claim.

c. Failure to Challenge Habitual Offender Status

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Petitioner next contends that counsel was ineffective for failing to challenge his habitual

offender status at sentencing. Petitioner contends that counsel should have objected because the

notice of sentence enhancement was not timely filed. This claim is without merit. Petitioner was

sentenced as an habitual offender under MICH. COMP. LAWS § 769.12. The Michigan habitual

offender statutes provide, in relevant part:

In a criminal action, the prosecuting attorney may seek to enhance the

sentence of the defendant as provided under section 10, 11, or 12 of this chapter, by

filing a written notice of his or her intent to do so within 21 days after the

defendant’s arraignment on the information charging the underlying offense or, if

arraignment is waived, within 21 days after the filing of the information charging the

underlying offense.

MICH. COMP. LAWS § 769.13(1). Petitioner contends that he was arraigned on August 16, 2006,

while the habitual offender notice was not filed until October 18, 2006. However, the August 16

arraignment to which petitioner refers was the arraignment on the criminal complaint or warrant,

which occurs in the district court. See MICH. CT. R. 6.104. The Michigan Court Rules provide for

a further arraignment on the information in the circuit court. See MICH.CT.R. 6.113. And, indeed,

it is the district court’s return following a preliminary examination which authorizes the filing of an

information in the first instance. See People v. McGee, 258 Mich. App. 683, 695, 672 N.W.2d 191,

199 (2003); MICH. COMP. LAWS § 767.42(1). A finding of probable cause at the preliminary

examination is a prerequisite to the filing of an information. See People v. Baugh, 243 Mich. App.

1, 5, 620 N.W.2d 653, 656 (2000). Section 769.13 requires that the notice of enhancement be filed

“within 21 days after the defendant’s arraignment on the information charging the underlying

offense.” MICH.COMP.LAWS § 769.13(1) (emphasis added). As explained above, petitioner could

not have been arraigned on the information until after he was bound over following the preliminary

examination, because before that time there was no information permitted by law. And the state

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court docket sheet filed by respondent reflects that petitioner was bound over from the district court

on October 9, 2006, and the information was filed on that date. The docket sheet further reflects that

petitioner was arraigned on the information on October 17, 2006. The habitual offender notice was

filed the following day. Therefore, there was no violation of § 769.13(1), and counsel was not

ineffective for failing to raise a meritless objection. See Bradley v. Birkett, 192 Fed. Appx. 468, 475

(6th Cir. 2006) (counsel not ineffective for failing to raise meritless objection); Anderson v. Goeke,

44 F.3d 675, 680 (8th Cir. 1995) (same); Burnett v. Collins, 982 F.2d 922, 929 (5th Cir. 1993)

(same).

2. Appellate Counsel

Petitioner also contends that his appellate counsel was ineffective for failing to raise his

second through fourth habeas claims on direct appeal. In evaluating the performance of appellate

counsel, it is well established that “appellate counsel . . . need not (and should not) raise every

nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of

success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing Jones v. Barnes, 463 U.S.

745 (1983)). Although it is “possible to bring a Strickland claim based on counsel’s failure to raise

a particular claim, . . . it is difficult to demonstrate that counsel was incompetent.” Id. As a general

rule, it is “‘only when ignored issues are clearly stronger than those presented [that] the presumption

of effective assistance of counsel [can] be overcome.’” Id. (quoting Gray v. Greer, 800 F.2d 644,

646 (7th Cir. 1986)). Further, in the appellate counsel context, to demonstrate prejudice petitioner

must show a reasonable probability that his claims would have succeeded on appeal. See id. at 285-

86; Benning v. Warden, 345 Fed. Appx. 149, 155-56 (6th Cir. 2009); McCleese v. United States, 75

F.3d 1174, 1180 (7th Cir. 1996).

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Here, counsel raised a significant issue on direct appeal, and petitioner has not shown that

the claims he presented in his motion for relief from judgment are clearly stronger that the claims

raised by counsel on direct appeal. Further, as explained above, petitioner has failed to show that

any of his claims have merit, and thus he cannot establish a reasonable probability that his claims

would have succeeded on direct appeal. Accordingly, the Court should conclude that petitioner is

not entitled to habeas relief on his appellate counsel claim.

H. 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

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

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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

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. With

respect to petitioner’s jury coercion claim, there is no question that the court’s instruction did not

compel the jury to reach any particular verdict or any verdict at all, and merely set forth the court’s

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schedule. Thus, the resolution of this claim is not reasonably debatable. Because there is no

indication that any of the jurors seated in petitioner’s case were actually biased against him, the

resolution of petitioner’s jury bias and related ineffective assistance claims is not reasonably

debatable. Because petitioner’s claim to have bought the stolen car was implausible both on its face

and in light of the other evidence, and because petitioner has failed to point to any evidence further

investigation would have revealed, the resolution of petitioner’s ineffective assistance claim based

on counsel’s failure to investigate is not reasonably debatable. And because the habitual offender

notice was filed in accordance with Michigan law, the resolution of petitioner’s ineffective

assistance claim based on counsel’s failure to challenge the habitual offender sentencing is not

reasonably debatable. Finally, because the resolutions of petitioner’s underlying claims are not

reasonably debatable, it follows that the resolution of petitioner’s ineffective assistance of appellate

counsel claim is not reasonably debatable. Accordingly, the Court should deny petitioner a

certificate of appealability.

I. 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,

but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED.

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R. CIV. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. See 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. See 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.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

Dated: 11/21/12

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 November 21, 2012.

s/Eddrey Butts 

Case Manager

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