IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ASKIA HILL,

Petitioner,

v.

BLAINE LAFLER, WARDEN,

Respondent.

Case No. 5:08-CV-14102

Judge Peter C. Economus, 

By Designation1

OPINION AND ORDER

Petitioner, Askia Hill, presently incarcerated at a Michigan correctional facility, filed a 

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

jury trial in the Wayne Circuit Court of assault with intent to commit murder, MICH. COMP.

LAWS § 750.83, carjacking, MICH. COMP. LAWS § 750.529a, felon in possession of a firearm, 

MICH. COMP. LAWS § 750.224f, and commission of a felony with a firearm, MICH. COMP. LAWS

§ 750.227b. For the reasons stated below, the Court denies the petition. The Court also declines 

to issue Petitioner a certificate of appealability.

I. BACKGROUND AND PROCEDURAL HISTORY

This Court recites as follows the relevant facts relied upon by the Michigan Court of 

Appeals. These facts are presumed correct on habeas review pursuant to 28 U.S.C. ' 2254(e)(1). 

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

Defendants were tried jointly[], as a result of two shootings on 

April 6, 2000. Relating to the murder charges, Erwin Wilson was 

shot and killed in front of 4171 Drexel [Street], in Detroit. The 

assault with intent to murder and carjacking charges arose out of 

another shooting, in which Jermaine Davenport, Wilson’s cousin, 

was shot in the next and his vehicle, a Yukon, was taken. Both 

defendants were acquitted of first-degree murder and the lesser 

offense of second-degree murder.

 1 Pursuant to Title 28, United States Code, ' 292(b), Chief Judge Alice M. Batchelder designated and 

assigned Judge Peter C. Economus to hear this case. (See Designation, docs. # 16 and 17.)
2

The prosecution’s theory was that [Petitioner], Whitman, Taylor 

and a fourth man[] were in a black SUV around 10:00 p.m. on 

April 6, 2000, and shot and killed Erwin Wilson, a street-level drug 

dealer, in front of 4171 Drexel Street. A few minutes later, the 

black SUV approached Jermaine Davenport, Wilson’s cousin, who 

was in another SUV parked on the street talking to fourteen-yearold Unique Webster.2

 Someone from the black SUV shot at 

Davenport and the SUV and chased him, until Davenport’s SUV 

crashed into a parked car and stopped. Davenport got out of his 

SUV and was shot at by Whitman and the others. Davenport 

sustained a gunshot wound to the neck, and Davenport’s SUV was 

taken by several of the perpetrators. Davenport walked to the 

house on Drexel, saw Wilson lying in the street, and saw Roosevelt 

Walker, a friend of Davenport’s with whom Davenport had been 

earlier. Davenport did not name any perpetrators unwell well after 

the shootings. In May 2000, Davenport was charged with 

Wilson’s murder, but the charges were later dropped.

Defendant Whitman’s defense theory was that Jermaine Davenport 

argued with Wilson on the evening in question and was in the SUV 

from which the shot that killed Wilson was fired. [Petitioner]’s 

defense was that he was not present at either shooting incident, and 

that Jermaine Davenport, who was involved in drug-dealing along 

with Wilson, had every reason to lie regarding this case.

People v. Whitman, 2006 WL 287861, *1 (Mich. Ct. App. Feb. 7, 2006) (footnote omitted). 

Defendant Marcus Taylor was tried with the defendants, but he was acquitted of all charges 

related to both shootings. Id., *1, n1. Petitioner filed an appeal by right. His appellate counsel 

filed a brief in the Michigan Court of Appeals that raised the following claims:

I. The trial court’s refusal to sever the charges relating to 

[Erwin] Wilson, from those relating to Jermaine Davenport, 

was an abuse of discretion which denied [Petitioner] of a 

fair trial and due process of law under the Sixth and 

Fourteenth Amendments.

II. [Petitioner] was denied a fair trial and his constitutional 

right to present a defense and to due process under the 

Sixth and Fourteenth Amendments, through the trial court’s 

 2 The Court of Appeals misstates one fact: Unique Webster was talking to Erwin Wilson, not Jermaine Davenport. 

(Doc. # 9 – 9, People’s Opening Statement, page 25; doc. # 9 – 12, Direct Examination of Unique Webster, page 

122.) That misstatement, however, does not impact the analysis herein.
3

(A) comments and interjections, and (B) limitations upon 

cross-examination, such that the defense was belittled and 

unfairly limited in its presentation.

The Michigan Court of Appeals confirmed Petitioner’s convictions in an unpublished decision. 

People v. Whitman, supra. Petitioner then filed an application for leave to appeal in the 

Michigan Supreme Court, but the court denied the application. People v. Hill, 721 N.W.2d 185 

(Mich. 2006). 

Next, Petitioner filed a motion for relief from judgment in the trial, raising the following 

claims: (1) Michigan court rules preclude “operation of the cause and prejudice standard” 

applied at trial; (2) he was denied effective assistance of appellate counsel where counsel failed 

to raise several issues on direct appeal; (3) the trial court abused its discretion in allowing 

evidence to be introduce without the proper foundation; (4) Petitioner’s right to confrontation 

was violated when he was not permitted to cross-examine the co-defendant; and (5) the

sentencing guidelines were based on facts not introduced into evidence. (State Trial Court’s 

Opinion Denying Motion for Relief, page 3, Doc. # 9 – 20.) The court denied the motion, 

determining that Petitioner failed to demonstrate the requisite “good cause for failure to raise the 

grounds on appeal and actual prejudice resulting from the alleged irregularities that support the 

claim for relief[.]” (Id., page 2, citing Michigan Court Rule 6.508(D)(3)(b).) Petitioner filed a 

delayed application for leave to appeal with the Michigan Court of Appeals. The Michigan 

Court of Appeals denied Petitioner’s delayed application for leave to appeal for “failure to meet 

the burden of establishing entitlement to relief under MCR 6.508(D).” (Order, December 14, 

2007, Doc. # 9 – 20, page 1.) The Michigan Supreme Court denied Petitioner’s application for 

leave to appeal for the same reason. People v. Hill, 750 N.W.2d 191 (Mich. 2008).
4

Petitioner’s petition for writ of habeas corpus sets forth the following claims:

Argument One: The trial court’s refusal to sever the charges 

relating to [Erwin] Wilson from those relating to Jermaine 

Davenport was an abuse of discretion which denied [Petitioner] a 

fair trial and due process under the Sixth and Fourteenth 

Amendments.

Argument Two: [Petitioner] was denied a fair trial and his 

constitutional rights to present a defense and to due process under 

the Sixth and Fourteenth Amendments through the trial court’s (A) 

comments and interjections, and (B) limitations upon cross 

examination such that the defense was belittled and unfairly 

limited in its presentation.

Argument Three: [Petitioner] was denied effective assistance of 

appellate counsel as cause for his failure to raise these meritorious 

claims on direct appeal.

Argument Four: The trial court abused its discretion and violated 

[Petitioner’s] constitutional rights of due process, equal protection, 

and fair trial by allowing state evidence to be introduced without 

the proper foundation being laid.

Argument Five: It was reversible error for the trial court to allow 

Mr. Whitman’s statements to be heard via Sgt. Abdella in lieu of 

live testimony before the trier of facts [sic] in violation of 

[Petitioner’s] constitutional right to confrontation and right to a fair 

trial where Mr. Whitman’s testimony was admitted into evidence 

via Sgt. Abdella without a showing of unavailability and a prior 

opportunity for cross-examination by [Petitioner] at trial.

Argument Six: The trial court violated [Petitioner’s] federal 

constitutional rights, U.S. Const. [Amendments] V, VI, & XIV at 

sentencing by scoring the statutory sentencing guidelines based on 

its findings of additional facts with the prosecutor had not charged, 

which had not been submitted to the jury, and which [Petitioner] 

had not admitted.

Argument Seven: [Petitioner] should have been appointed 

appellate counsel to represent him on first tier review in the Court 

of Appeals pursuant to the Sixth Circuit’s decision based upon 

Simmons v. Kapture, 474 F.3d 896 ([6th Cir.] 2005) that Halbert v. 

Michigan, 545 U.S. 605, 125 S. Ct. 2588 (2005) should be applied 

retroactively on collateral review.

(Petition, doc. # 1, pages 8 – 9.)
5

II. STANDARD OF REVIEW

Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 

1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only 

if he can show that the state court’s adjudication of his claims on the merits 

(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). 

Under the “contrary to” clause, ' 2254(d)(1), “a federal habeas court may grant the writ 

if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a 

question of law or if the state court decides a case differently than [the Supreme Court] has on a 

set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412 – 13 (2000). 

The Supreme Court has recently clarified that “review under ' 2254(d)(1) is limited to the 

record that was before the state court . . . .” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). 

In other words, “[i]f a claim has been adjudicated on the merits by a state court, a federal habeas 

petitioner must overcome the limitation of ' 2254(d)(1) on the record that was before the state 

court.” Id. at 1400; see Bray v. Andrews, 640 F.3d 731, 737 (6th Cir. 2011).

Under the “unreasonable application” clause, ' 2254(d)(1), a federal habeas court may 

grant the writ only if the state court’s application of clearly established federal law to the facts 

of the prisoner’s case was objectively unreasonable in light of the evidence presented in the 

state court proceedings. Williams, 529 U.S. at 409 – 11. “[A]n unreasonable application of 

federal law is different from an incorrect application of federal law,” id. at 410, such that “even 

a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” 
6

Harrington v. Richter, 131 S.Ct 770, 786 (2011). Finally, under the “unreasonable 

determination” clause, ' 2254(d)(2), federal courts must bear in mind that “a state-court factual 

determination is not unreasonable merely because the federal habeas court would have reached 

a different conclusion in the first instance.” Wood v. Allen, 130 S. Ct. 841, 849 (2010).

Section 2254(d), as amended by AEDPA, is a “purposefully demanding standard.” 

Montgomery v. Bobby, 654 F.3d 668, 676 (6th Cir. 2011) (en banc) (citing Harrington, 131 S. 

Ct. at 786). “Section 2254(d) reflects the view that habeas corpus is a guard against extreme 

malfunctions in the state criminal justice system, not a substitute for ordinary error correction 

through appeal.” Harrington, 131 S. Ct. at 786 (internal quotation marks omitted). To obtain 

relief, a habeas petitioner must “show that the state court’s ruling on the claim being presented 

in federal court was so lacking in justification that there was an error well understood and 

comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 786

– 87. This “highly deferential standard” requires that determinations made in state court “be 

given the benefit of the doubt.” Pinholster, 131 S. Ct. at 1398 (internal quotation marks 

omitted).

III. DISCUSSION

A. Motion to Sever

Petitioner first claims that the trial court’s refusal to sever the charges relating to Erwin 

Wilson from those relating to Jermaine Davenport denied Petitioner a fair trial and due process 

under the Sixth and Fourteenth Amendments. (Petition, pages 21 – 27.) The Michigan Court of 

Appeals rejected this claim on the merits as follows:

This Court reviews a trial court’s determination whether severance 

is mandatory de novo. People v. Abraham, 256 Mich. App. 265, 

271-72; 662 N.W.2d 836 (2003). Review of the trial court’s 

decision to sever related offenses is for an abuse of discretion. 
7

People v. Duranseau, 221 Mich. App. 204, 208; 561 N.W.2d 111 

(1997). . . . 

The trial court did not err in concluding that severance was not 

mandatory. Two offenses are related if they are based on the 

same conduct or a series of connected acts. MCR 6.120(B). The 

prosecution maintains, and we agree, that Erwin [sic] Wilson’s 

murder and the assault on Jermaine Davenport, Wilson’s cousin, 

constitute “connected acts” under the court rule. Shortly before 

Wilson was shot, Davenport was parked in his SUV and saw a 

black SUV drive by, driven by defendant Whitman with defendant 

Hill in the passenger seat and codefendant Marcus Taylor in the 

back seat. Davenport saw the black SUV stop in front of Unique 

Webster’s house and heard gunshots. The black SUV drove away, 

but Davenport saw it about five minutes later, at which time he 

heard gunshots and his vehicle’s rear window shattering. 

Davenport drove off, was pursued, and after crashing into a 

parked car, got out of his SUV and saw defendants Whitman[,] 

Hill and Taylor next to the black SUV. All the men shot at 

Davenport, he was struck in the neck, and the men drove away in 

his SUV and the black SUV. The acts happened within minutes, 

in proximity to each other, and the shooting of Wilson may have 

been the motive to Davenport’s shooting. We conclude that the 

trial court did not err in concluding severance was not mandatory. 

People v. Tobey, 401 Mich. 141; 257 N.W.2d 537 (1977).

People v. Whitman, 2006 WL 287861, * 4-5 (Mich. App., Feb. 7, 2006). The court also found that 

the trial court’s denial of Petitioner’s request for severance was not an abuse of discretion, noting 

that the trial court set forth its reasons and that the record supported this determination. Id. at *5. 

Under Michigan law, the trial court had the discretion to determine whether the claims 

should be severed, and after a hearing on the matter, the court denied the motion. Under MCR 

6.121(D), “the court may sever the trial of defendants on the ground that severance is 

appropriate to promote fairness to the parties and a fair determination of the guilt or innocence 

of one or more of the defendants.” 

Petitioner’s objections to the trial court’s alleged errors of state law are errors for which 

“federal habeas corpus relief does not lie.” Estelle v. McGuire, 502 U.S. 62, 67, 112 (1991). 
8

To be cognizable in federal habeas corpus, there must be constitutional errors that were material 

to the outcome of the case and resulted in a denial of fundamental fairness to Petitioner. 

Jameson v. Wainwright, 719 F.2d 959 (6th Cir. 1983). To obtain federal habeas relief on this 

claim involving state law, Petitioner must show that misjoinder of the counts “resulted in 

prejudice so great as to deny a defendant his right to a fair trial.” Davis v. Coyle, 475 F.3d 761, 

777 (6th Cir. 2007) (citation and internal alterations omitted). A risk of undue prejudice exists 

whenever joinder of counts permits introduction of evidence of other crimes that would 

otherwise be inadmissible. Id. at 777.

By allowing joinder of offenses, the possibility exists that a jury 

may use evidence of one of the charged crimes to infer a general 

criminal disposition by the defendant; the jury also may confuse 

or cumulate the evidence of the various crimes charges. The 

prejudice that [a petitioner] must demonstrate, however, in order 

to justify a grant of a writ of habeas corpus is actual prejudice, not 

merely the potential for prejudice.

Id. at 777 (internal citations omitted). Here, Petitioner argues that the trial court should have 

granted his motion to sever, but he demonstrates no actual prejudice. Without more, this Court 

cannot substitute its own judgment for that of the State of Michigan. “[A] state rule of law does 

not run afoul of the Fourteenth Amendment because another method may seem to our thinking 

to be fairer or wiser or to give a surer promise of protection to the prisoner at bar.” Spencer v. 

Texas, 385 U.S. 554, 564 (1967) (reaffirmed by Marshall v. Lonberger, 459 U.S. 422 (1983)).

Petitioner’s first argument is without merit.

B. Trial court’s comments and limitations on cross-examination

In his second argument, Petitioner asserts that the trial court denied him a fair trial by 

making comments and interjections throughout the trial and by limiting Petitioner’s counsel’s 

ability to cross-examine Unique Webster. (Petition, pages 28-35.) The Michigan Court of 
9

Appeals reviewed for an abuse of discretion the trial court’s determination to limit crossexamination and other rulings involving its control of trial proceedings. People v. Whitman, 

2006 WL 287861, *5 (Mich. Ct. App., Feb. 7, 2006) (citing People v. Sexton, 250 Mich. App. 

211, 221; 646 N.W.2d 875 (2002)). “Under MRE 611(a), a trial court has broad discretion to 

control trial proceedings, and in doing so, may impose time limits on cross examination.” 

Whitman, 2006 WL 287861 at *5 (citing People v. Thompson, 193 Mich. App. 58, 62; 483 

N.W.2d 428 (1992)). “The right of cross-examination is not without limit; neither the 

Confrontation Clause nor due process confers an unlimited right to admit all relevant evidence 

or cross-examine on any subject.” Id. at *6 (internal citations omitted). The appellate court 

noted that the areas of cross-examination identified by Petitioner’s counsel “were covered by 

him at trial or by co-defendant Whitman’s counsel.” Id. at *7. Inconsistencies of statements 

and biases of witnesses were “explored at length at trial.” Id. Indeed, “[i]mpeachment Unique 

Webster by defense counsel was rampant.” Id. The appellate court concluded that “if there was 

error in limiting [Petitioner’s] counsel’s cross-examination of Unique Webster, it was harmless 

because additional questioning would not have caused the jury to alter its determination of . . . 

credibility and the weight to accord [to] testimony.” Id. 

The Sixth Amendment guarantees the criminal defendant the right “to be confronted 

with the witnesses against him.” “At the core of the Confrontation Clause is the right of every 

defendant to test the credibility of witnesses through cross-examination.” Boggs v. Collins, 226 

F.3d 728, 736 (6th Cir. 2000) (citing Davis v. Alaska, 415 U.S. 308, 315-16 (1974); Mayes v. 

Sowders, 621 F.2d 850, 855 (6th Cir. 1980)). However, a trial court retains the discretion to 

limit the scope of cross-examination. “This includes discretion to impose limits based on 

concerns about harassment, prejudice, confusion of the issues, witness safety, or interrogation 
10

that is repetitive or only marginally relevant.” Id. at 736 (citing King v. Trippett, 192 F.3d 517, 

524 (6th Cir. 1999)). Thus, the Confrontation Clause “guarantees the opportunity for effective 

cross-examination, not cross-examination that is effective in whatever way, and to whatever 

extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985).

In Boggs, the Sixth Circuit noted that the Davis Court made an important distinction 

between a “general attack” and a more “particular attack” on biases or prejudices.

Thus, although Davis trumpets the vital role cross-examination 

can play in casting doubt on a witness’s credibility, not all 

conceivable methods of undermining credibility are 

constitutionally guaranteed. In particular, the Davis Court 

distinguished between a “general attack” on the credibility of a 

witness—in which the cross-examiner “intends to afford the jury a 

basis to infer that the witness’ character is such that he would be 

less likely than the average trustworthy citizen to be truthful in his 

testimony”—and a more particular attack on credibility “directed 

toward revealing possible biases, prejudices, or ulterior motives as 

they may related directly to issues or personalities in the case at 

hand.” . . . Faced with a situation where a trial court barred crossexamination bearing on a witness’s bias and motive to testify, the 

Court concluded that the countervailing state interests “cannot 

require yielding of so vital a constitutional right as the effective 

cross-examination for bias of an adverse witness.” In a 

concurrence, Justice Stewart underscored that the Confrontation 

Clause was implicated only because Davis was seeking to show 

bias or prejudice.

Boggs, 226 F.3d at 736-37 (citing Davis, 415 U.S. at 316, 321 (internal citations omitted)). In 

the Davis trial, Davis, who was charged with burglary, was prevented from showing that a key 

witness was on probation for burglary. Davis argued that his purpose was to show the witness’s 

bias because the witness was trying “to shield suspicions of his own involvement in the crime, 

and because he may have feared that his own probation was in jeopardy.” Davis, 415 U.S. at 

319. Although the Davis Court found that the trial court violated the Confrontation Clause by 

barring cross-examination, in Boggs, the Sixth Circuit upheld the trial court’s bar. Boggs, 

charged with rape, attempted to cross-examine a witness on her alleged prior false accusation of 
11

rape, but the trial court would not permit it. The Sixth Circuit upheld that decision, noting that 

Boggs’ Confrontation Clause argument “improperly blurs the precise distinctions drawn in 

Confrontation Clause jurisprudence.” Boggs, 226 F.3d at 739. 

Not having articulated an argument sounding in motive, bias or 

prejudice, Boggs instead seeks to elevate his purpose—attacking 

[the witness’s] general credibility—into a constitutionally 

mandated right. He argues that because [the witness’s] credibility 

is central to his case, the Sixth Amendment requires that he be 

allowed to cross-examine her on an incident bearing on that 

credibility. Because this contention goes beyond the clear sweep 

of the Confrontation Clause traced by Davis [and its progeny], we 

cannot accept it as a ground for habeas relief.

Id. at 739. In sum, the salient question is whether the trial court’s limitation on crossexamination implicated the defendant’s ability to show bias or prejudice, rather than general 

issues of credibility.

Here, Petitioner argues that the trial court violated his right to a fair trial by limiting his 

counsel’s time to cross-examine Unique Webster. Petitioner states that his counsel at trial 

wanted additional time to cross-examine Webster regarding several issues, including 

discrepancies in her testimony regarding what she heard and saw during the night in question. 

“These areas of questioning would have served to properly present her credibility to the jury for 

consideration.” (Petition, page 33.) “Her credibility was crucial to the case, not only because 

she was present during the murder, but she was also present when her brother gave [an] 

incriminating statement[] that Davenport was the murderer and signed that statement, and had 

spoken with Davenport during various pre-trial hearings.” (Id., internal citation omitted.) 

Petitioner’s argument falls precisely within the scope of Boggs, where the crossexamination seeks to make a general attack on credibility, not to make a particularized 

confrontation on bias or prejudice. A review of the record, including the trial transcript, shows 

that considerable time was devoted to cross-examination of Webster, including exploration of 
12

her credibility or alleged lack thereof. Indeed, the trial court granted wide latitude to counsel 

for co-defendant Whitman, as the following cross-examination process was set forth:

So, this is my thought that maybe we [can] all work with. Perhaps 

in this case we have Ms. Silver, who’s conducting a very 

extensive cross-examination based upon all the discovery 

materials obviously. And then Mr. Elsey [Petitioner’s counsel] 

and Mr. Cripps [co-defendant Taylor’s counsel], rather than going 

through everything that Ms. Silver has covered, which would 

apply to all three defendants, perhaps you might want to get in and 

wrap up or reiterate a couple key points that she made during her 

cross-examination, which would be in the best interest[s] of your 

clients. And then if there’s a particular focus that you have that 

deals with your client, hit on that area. Okay?

(Trial Transcript, doc. # 9-13, page 4.) Petitioner’s counsel objected on the record to this 

process (id., pages 69-70), but neither at that time nor now was the objection based on anything 

other than general credibility of the witness. For that reason, the Confrontation Clause is not 

implicated, and Petitioner cannot show that the trial court violated his right to a fair trial.

Petitioner also argues that the trial court’s interjections violated his right to a fair trial. 

Although review of the trial transcript shows numerous interruptions by the judge, Petitioner’s 

argument fails. As found by the Michigan Court of Appeals, Petitioner did not show that the 

court was biased or that its remarks “unduly influenced the jury such that [Petitioner] was 

denied a fair trial.” People v. Whitman, 2006 WL 287861, *8 (6th Cir., Feb. 7, 2006). 

Further, Petitioner makes no showing that any interruptions or interjections violated the 

Constitution. Instead, he merely speculates that the interruptions created the “possibility that 

the jury’s suspicions were raised concerning” Petitioner’s defense. (Petitioner, page 35.) 

Without more, there is no ground for federal habeas relief.

C. Claims Raised in Motion for Relief from Judgment

Petitioner’s remaining claims were not presented to the state courts during his appeal of 

right. Instead, these claims were first presented to the trial court in his Motion for Relief from 
13

Judgment. The trial court denied that motion pursuant to Michigan Court Rule 6.508(D)(3), 

finding that Petitioner had failed to demonstrate the requisite “good cause” or prejudice for 

failing to have raised them previously. The state appellate courts, using the form order citing to 

Rule 6.508(D), denied relief.

Respondent asserts that Petitioner’s claims are procedurally defaulted because he failed 

to raise them on direct appeal. Procedural default occurs “[w]hen a habeas petitioner fails to 

obtain consideration of a claim by a state court, either due to the petitioner’s failure to raise that 

claim before the state courts while state-court remedies are still available or due to a state 

procedural rule that prevents state courts from reaching the merits of the petitioner’s claim.” 

Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000) (citation omitted). A claim that is 

procedurally defaulted may not be considered by a federal habeas court. Id.

Three elements must be satisfied before a claim may be considered to be procedurally 

defaulted:

(1) the petitioner failed to comply with a state procedural rule that 

is applicable to the petitioner’s claim; (2) the state courts actually 

enforced the procedural rule in the petitioner’s case; and (3) the 

procedural forfeiture in an “adequate and independent” state 

ground foreclosing review of a federal constitutional claim.

Willis v. Smith, 351 F.3d 741, 744 (6th Cir. 2003) (quoting Maupin v. Smith, 785 F.2d 

135, 138 (6th Cir. 1986)). Michigan Court Rule 6.508(D) rule provides in part that a court may 

not grant relief to a defendant if the motion for relief from judgment alleges grounds for relief 

which could have been raised on direct appeal, unless defendant makes a showing of good cause 

for the failure to raise such grounds previously and of resultant actual prejudice. In Guilmette v. 

Howes, though, the Sixth Circuit held that the form order used by the Michigan Supreme Court 

to deny leave to appeal is unexplained because its citation to Michigan Court Rule 6.508(D) is 

ambiguous as to whether it refers to procedural default or a rejection on the merits. 624 F.3d 
14

286, 291-92 (6th Cir. 2010) (en banc). Under Guilmette, this Court must “look through” the 

unexplained order of the Michigan Supreme Court—and the identical order used by the 

Michigan Court of Appeals—to the state trial court’s decision to determine the basis of the 

denial of state post-conviction relief.

Here, the state trial court denied relief on procedural grounds. Citing MCR 6.508(D)(3), 

it concluded that Petitioner had failed to demonstrate good cause and actual prejudice on the 

basis of his claim of ineffective assistance of appellate counsel. Specifically, the trial court 

noted: 

[Petitioner] contends [that] his appellate counsel was ineffective 

by failing to raise [Petitioner’s] current issues on direct appeal. 

This contention is without merit[] because the appellate counsel’s 

decision to winnow out weaker arguments and focus on those 

more likely to prevail is not evidence of ineffective assistance. 

This Court will not second[-]guess the strategies appellate counsel 

employed. The record clearly reflects that the constitutional rights 

afforded to [Petitioner] under the United States and Michigan 

Constitutions have been protected. Furthermore, [Petitioner’s] 

argument fails because [he] cannot show any possible prejudice 

from appellate counsel’s decisions. Defendant was afforded a fair 

trial and full appeal.

(Opinion denying Motion for Relief from Judgment, doc. # 1-3, page 5; internal citations 

omitted.) As a result of the trial court’s denial on procedural grounds, Petitoner’s third through 

seventh claims are procedurally defaulted.

A state prisoner who fails to comply with a state’s procedural rule waives the right to 

federal habeas review absent a showing of cause for non-compliance and actual prejudice 

resulting from the alleged constitutional violation or a showing of a fundamental miscarriage of 

justice. Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Petitioner asserts ineffective 

assistance of appellate counsel as his cause to excuse default. (Petition, Third Claim for Relief.) 

In order to show ineffective assistance of counsel, Petitioner must show that his counsel’s 
15

performance was deficient and that “the deficient performance prejudiced the defense.” 

Strickland v. Washington, 466 U.S. 668, 687 (1984); O’Hara v. Wigginton, 24 F.3d 823, 828 

(6th Cir. 1994). To determine whether counsel’s performance was deficient, this Court must 

determine as follows:

. . . whether, in light of all the circumstances, the identified acts or 

omissions were outside the wide range of professionally 

competent assistance . . . . At the same time, the 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.

Strickland, 466 U.S. at 690. Judicial scrutiny of counsel’s performance is thus “highly 

deferential.” Id. at 689. The defense is prejudiced only if “there is a reasonable probability 

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

different.” Id. at 694. 

A criminal defendant does not have a constitutional right to have appellate counsel raise 

every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). Strategic and 

tactical choices regarding which issues to pursue on appeal are “properly left to the sound 

professional judgment of counsel.” United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). 

Truly, “the hallmark of effective appellate advocacy” is the “process of winnowing out weaker 

arguments on appeal and focusing on those more likely to prevail.” Smith v. Murray, 477 U.S. 

527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52) (internal quotation marks omitted)). 

“Generally, only when ignored issues are clearly stronger than those presented will the 

presumption of effective assistance of appellate counsel be overcome.” Monzo v. Edwards, 281 

F.3d 568, 579 (6th Cir. 2002). 

Petitioner fails to show that his appellate counsel’s performance fell wide of the range of 

professionally competent assistance. Appellate counsel presented legitimate issues on direct 
16

appeal. Moreover, none of the claims presented in the motion for relief from judgment are the 

kind of claims that are obvious from the trial record and would have resulted in reversal on 

appeal. See Meade v. Lavigne, 265 F.Supp.2d 849, 870 (E.D. Mich. 2003). Notably, the trial 

court, under the MCR 6.508 directive, found that the claims lacked merit under the prejudice 

portion of the cause-and-prejudice test. Because Petitioner fails to demonstrate that appellate 

counsel was ineffective he cannot establish cause to excuse his procedural default.

Last, Petitioner has not demonstrated that a fundamental miscarriage of justice has 

occurred. The miscarriage of justice exception requires a showing that a constitutional violation 

probably resulted in the conviction of one who is actually innocent. Murray v. Carrier, 477 

U.S. 478, 479-80 (1986). Such a claim of innocence requires a petitioner to support the 

allegations of constitutional error with reliable evidence that was not presented at trial. Sclup v. 

Delo, 513 U.S. 298, 324 (1995). Actual innocence means factual innocence, not mere legal 

insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998) (emphasis added). Petitioner 

does not make such a showing. Therefore, these claims are barred by procedural default, and 

they do not warrant habeas relief.

Finally, in his traverse (or reply brief) in support of his petition, Petitioner, for the first 

time, alleges that the Detroit Crime Lab’s failure “to preserve and analyze evidence might have 

played a vital role in his conviction . . . .” (“Petitioner’s Answer in Opposition to the 

Respondent’s Answer,” doc. # 10, page 20.) A traverse or reply to an answer to a habeas 

petition is not the proper pleading for a habeas petitioner to raise additional grounds for relief. 

Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994). A court cannot consider new 

issues raised in a traverse or reply to the State’s answer because the claim has not been exhausted 

in the state court. Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005). Further, even if it were 
17

properly before this Court, Petitioner offers only speculation as to how any acts or omissions by 

the Detroit Crime Lab would be relevant to his case.

. . . [I]f evidence now exist[s] that shows definitively that it is 

more likely than not that [Jermaine] Davenport murdered Mr. 

Wilson, that Davenport was somehow involved in both shooting 

incidents, and that the petitioner was not involved in Davenport’s 

manufactured carjacking and assault to advert the police attentions 

[elsewhere], it would in fact be a fundamental miscarriage of 

justice if the petitioner was compelled to remain incarcerate[d] for 

Davenport’s crimes without further proceedings to determine 

whether the Detroit Crime Lab contributed to his conviction and 

allowed a guilty man to go free.

(Petitioner’s Reply, doc. #10, page 21.) The problem with Petitioner’s argument is that is 

dependent upon several layers of supposition: if evidence exists, if that evidence is related to 

Davenport, if that evidence related to Davenport is connected to either Wilson’s murder or 

Davenport’s shooting, and if that evidence would exculpate Petitioner. Too many leaps are 

required for this claim to rise above the amorphous level of guesswork. As a result, even if this 

claim were before the Court, it fails.

IV. CERTIFICATE OF APPEALABILITY

A petitioner must receive a certificate of appealability ("COA") in order to appeal the 

denial of a habeas petition for relief from either a state or federal conviction. 28 U.S.C. §§ 

2253(c)(1)(A), (B). A court may issue a COA "only if the applicant has made a substantial 

showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a federal district 

court rejects a habeas claim on the merits, the substantial showing threshold is met if the 

petitioner demonstrates that reasonable jurists would find the district court's assessment of the 

constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). 

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

the district court's resolution of his constitutional claims or that jurists could conclude the issues 
18

presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 

U.S. 322, 327 (2003)(citation omitted). In applying this standard, a district court may not 

conduct a full merits review, but must limit its examination to a threshold inquiry into the 

underlying merit of the petitioner's claims. Id. at 336-37. The Court concludes that jurists of 

reason would not find the Court's assessment of Petitioner's claims debatable or wrong. The 

Court thus declines to issue Petitioner a certificate of appealability.

V. CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is DENIED. It is further 

ordered that a Certificate of Appealability is DENIED.

/s/ Peter C. Economus _____________

PETER C. ECONOMUS

UNITED STATES DISTRICT JUDGE