UNITED STATES DISTRICT COURT
 

EASTERN DISTRICT OF MICHIGAN
 

SOUTHERN DIVISION
 

ODRECUS RYZAN CLEMENTS, 

Petitioner, CASE NO. 08-CV-14270 

v. JUDGE PAUL D. BORMAN 

UNITED STATES DISTRICT JUDGE
 

CAROL HOWES,
 

Respondent. 

_____________-----'1 

OPINION AND ORDER
 

(1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DECLINING TO
 

ISSUE A CERTIFICATE OF APPEALABILITY, (3) AND DENYING
 

AN APPLICATION FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS
 

I. INTRODUCTION 

This is a habeas case filed by a state prisoner under 28 U.S.C. § 2254. Michigan prisoner 

Odrecus Ryzan Clements ("Petitioner" ) is currently incarcerated by the Michigan Department of 

Corrections at the Central Michigan Correctional Facility in St. Louis, Michigan. On October 7, 

2008, he filed this pro se Habeas Petition challenging his 2006 conviction for unarmed robbery, 

MICH. COMPo LAWS § 750.530, following a jury trial in the Genesee County Circuit Court. He was 

sentenced on July 13,2006, as a habitual offender, fourth offense, MICH. COMPo LAWS § 769.12, to 

nine years, six months to twenty-five years in prison for that conviction. 

In his pleadings, Petitioner raises claims concerning his sentencing, the prosecutor's failure 

to provide discovery, the jury instructions, and the effectiveness of trial counsel. On February 14, 

2011, Petitioner filed a Motion for Leave to Amend his Habeas Petition, along with an attached 

Memorandum of Law. In that Motion, he sought permission from the Court to amend his original 

Habeas Petition with respect to his sentencing claim, because the "issue was not fully briefed" in his 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 1 of 19 Pg ID 747
Reply Brief. He argued that he was entitled to resentencing because the "sentencing court failed to 

properly resolve the challenges to the accuracy of the information in the presentence report" with 

respect to the number of victims that were placed in danger. He did not seek to add new claims or 

parties. On September 23, 2011, the Court granted his Motion. 

For the reasons set forth, the Court denies the Petition. The Court also declines to issue 

Petitioner a Certificate of Appealability and denies him an Application for Leave to Proceed On 

Appeal In Forma Pauperis. 

II. BACKGROUND 

Petitioner's conviction arises because of an unarmed robbery which occurred at the Golden 

Gate Restaurant in Flint, Michigan, on November 12,2005. Petitioner used force against employee 

Bonnie Elrod. The Michigan Court of Appeals provided a brief summary of the facts, which is 

presumed correct on habeas review. See Monroe v. Smith, 197 F.Supp.2d 753, 758 (E.D. Mich. 

2001), aff'd, 41 F.App'x 730 (6th Cir. 2002) (citations omitted). The Court of Appeals stated: 

Defendant entered a restaurant and asked the cashier, Bonnie Elrod, for 

change for a dollar. When Elrod opened the register, defendant grabbed $20 bills and 

$50 bills and ran out the door. Elrod chased defendant to the parking lot, where he 

jumped in a truck driven by Lynette Woods. Elrod tried to grab the keys out of the 

ignition from the driver's side, but defendant pushed Woods aside, put the truck in 

gear, and sped off, injuring Elrod's knee. 

People v. Clements, No. 271808,2007 WL 3085476, at *1 (Mich.Ct.App. Oct. 23, 2007). 

Additional trial testimony revealed the following pertinent facts. 

Terry O'Hanisain, a customer who was at the restaurant at the time ofthe incident, testified 

that he saw a man lean over the counter near where Elrod was standing by the cash register. He did 

not think anything about the situation until he heard a waitress shouting. He said he then saw Elrod 

2
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 2 of 19 Pg ID 748
chasing the man into the parking lot. He, along with several other individuals, followed them out. 

O'Hanisain testified that he turned to the others and told them he was going to call the police. 

However, when he discovered that someone else was already calling the police, he went back outside 

to the parking lot. O'Hanisain said Elrod was on the ground, "her head and body were right next to 

the wheel" of a truck. Trial Tr. vol. II, 21 June 7, 2006. The truck took off, hitting Elrod and 

knocking her away. 

Gerald Long, another witness to the incident, testified that he was sitting in a booth with 

O'Hanisain, his back facing the door, when he heard a woman scream. He said he saw a heavy-set 

black man running out the door, with Elrod following him. Long said he followed Elrod. He saw 

the man get into a truck with a female driver. The female driver put the truck in reverse and Elrod 

was dragged across the parking lot. Long identified Petitioner in court as the perpetrator. 

Detective Randy Kimes, a police detective for the Flint Township Police Department, 

testified that he participated in a corporeal six-man lineup in which Elrod identified Petitioner as the 

robber. Detective Kimes testified that Elrod said she was "[n]inety to a hundred percent" sure that 

the man identified as Petitioner in the lineup was the man who robbed her. Trial Tr. vol. II, 80 June 

7,2006. 

Lynette Woods also testified. She said that, on the day in question, she was driving her 

mother's S-10 pickup truck. A man asked her to give him a ride. She knew the man as "Worm." 

She said they first stopped at his friend's house and then went and parked by a lake and smoked 

crack cocaine. Afterward, they went to a gas station and then to the Golden Gate restaurant. Woods 

said Worm got out of the truck, while she waited in truck. 

3
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 3 of 19 Pg ID 749
Woods further testified that she then heard some loud "booms." Trial Tr. vol. II, 96 June 7, 

2006. Worm was hitting the hood ofthe truck and yelling "go." Id She said he jumped into the cab 

and started the ignition. He backed up, as she was hanging onto the door. They then sped away. 

He drove to another friend's house, where she stayed overnight. Worm drove away in the truck. At 

some point the next morning, she got away and called her husband. Woods's husband told her that 

the police were with him. The police then came and got her. 

When the police arrived, they arrested Woods. She was charged with possession ofcocaine 

and accessory-after-the-fact. She was given a plea and sent to drug court for testifying against 

Petitioner. She was released from jail seven days later. At some point, Woods met with the police. 

She was shown a photo lineup. Woods identified Petitioner as "Worm." 

Mark Schmitzer, a police detective with the Flint Township Police Department, was present 

when Woods was brought in for the photo lineup. He testified that Woods identified Petitioner 

"[w]ithin a second." Trial Tr. vol. II, 146 June 7, 2006. 

The prosecution rested. Petitioner did not testify. 

The jury convicted Petitioner. He was sentenced to the prison term described above. 

Following his conviction and sentencing, Petitioner filed an appeal ofright with the Michigan 

Court of Appeals, alleging the following: (1) the trial court erred in denying his objections to the 

scoring ofOffense Variable (OV) 9 at 10 points because the evidence did not supportthe finding that 

there were two to nine victims, and (2) trial counsel was ineffective for failing to object when the 

trial court required the jury to determine whether Woods was an accomplice before applying the 

instruction on accomplice testimony. In a pro per supplemental brief, Petitioner raised three 

additional issues: (1) the prosecutor committed misconduct by failing to turn over a photographic 

4
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 4 of 19 Pg ID 750
lineup, using perjured testimony, and using an unduly suggestive identification process; (2) the trial 

judge erred in instructing the jury that there was some evidence that he ran away after the crime; and 

(3) trial counsel was ineffective for failing to object to Woods's testimony and in-court 

identification, failing to offer a photograph of Alex Williams, a man who looked like him, into 

evidence, and failing to object to the admission of evidence regarding Elrod's injuries. 

The Court of Appeals denied relief on those claims and affirmed Petitioner's conviction. 

Clements, 2007 WL 3085476, at *1-8. Petitioner then filed an Application for Leave to Appeal with 

the Michigan Supreme Court, along with a Motion to Remand. Both were denied. People v. 

Clements, 480 Mich. 1136, 746 N.W.2d 87 (2008). His Motion for Reconsideration also was denied. 

People v. Clements, 481 Mich. 881, 748 N.W.2d 833 (2008). 

Petitioner neither filed a Motion for Relief from Judgment with the state trial court nor a 

Petition for Writ of Certiorari with the United States Supreme Court. Rather, he filed this Habeas 

Petition, raising the same claims presented to the state courts on direct appeal. Respondent has filed 

an Answer, arguing that the Petition should be denied for lack of merit. 

III. ANALYSIS 

A. Standard of Review 

The provisions ofthe Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 

codified 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed this Petition after the 

AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides: 

An application for a writ of habeas corpus on behalfof 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 claim5
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 5 of 19 Pg ID 751
(1) resulted in a decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by the Supreme Court 

of the United States; or 

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

facts in light of the evidence presented in the State court proceeding. 

28 U.S.C. § 2254(d). 

"A state court's decision is 'contrary to' [the United States Supreme Court's] 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 [that] precedent.'" Mitchell v. 

Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362,405-06 

(2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002) (same). "[T]he 'unreasonable application' 

prong of[the statute] permits a federal habeas court to 'grant the writ ifthe 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); Bell, 535 U.S. at 694. However, "[i]n order for a federal court 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); Williams, 529 U.S. at 409. 

Recently, in Harrington v. Richter, --- U.S. ---, 131 S.Ct. 770, 786-87 (2011), the United 

States Supreme Court held: 

A state court's determination that a claim lacks merit precludes federal habeas 

relief so long as "fairminded jurists could disagree" on the correctness of the state 

court's decision. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 

L.Ed.2d 938 (2004). And as this Court has explained, "[E]valuating whether a rule 

6
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 6 of 19 Pg ID 752
application was unreasonable requires considering the rule's specificity. The more 

general the rule, the more leeway courts have in reaching outcomes in case-by-case 

determinations." Ibid. "[1]t is not an unreasonable application ofclearly established 

Federal law for a state court to decline to apply a specific legal rule that has not been 

squarely established by this Court." Knowles v. Mirzayance, 556 U.S. ----, ----, 129 

S.Ct. 1411, 1413-14, 173 L.Ed.2d 251 (2009) (internal quotation marks omitted). 

** * 

Section 2254(d) reflects the view that habeas corpus is a "guard against extreme 

malfunctions in the state criminal justice systems," not a substitute for ordinary error 

correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332 n.5, 99 S.Ct. 2781, 

61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for 

obtaining habeas corpus from a federal court, a state prisoner 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. 

Additionally, a state court's factual determinations are presumed correct on federal habeas 

review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebutthis presumption only with clear 

and convincing evidence. See Warren v. Smith, 161 F.3d 358,360-61 (6th Cir. 1998). Moreover, 

habeas review is "limited to the record that was before the state court." Cullen v. Pinholster, --- U.S. 

---, 131 S.Ct. 1388, 1398 (2011). 

With those standards in mind, the Court proceeds to address Petitioner's claims. 

B. Petitioner's Claims 

1. Claim 1- Improper Sentencing 

In his first habeas claim, Petitioner asserts that he is entitled to habeas relief because his 

sentence was based on an incorrect application of scoring under the State's sentencing guidelines. 

In his Motion to Amend, Petitioner claims that he is entitled to resentencing because the "sentencing 

court failed to properly resolve the challenges to the accuracy ofthe information in the presentence 

report" with respect to the number of victims that were placed in danger. 

7
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 7 of 19 Pg ID 753
Claims which arise out ofa state trial court's sentencing decision are not normally cognizable 

upon habeas review, unless the petitioner can show that the sentence imposed exceeded the statutory 

limits or is wholly unauthorized by law. See Lucey v. Lavigne, 185 F.Supp.2d 741, 745 (E.D. Mich. 

2001). Petitioner's claim that the trial court erred in scoring OV 9 (number of victims) under the 

state sentencing guidelines is not cognizable on federal habeas review because it is basically a state 

law claim. See Howard v. White, 76 F.App'x 52, 53 (6th Cir. 2003) ("A state court's alleged 

misinterpretation of state sentencing guidelines and crediting statutes is a matter of state concern 

only."); McPhail v. Renico, 412 F.Supp.2d 647,656 (E.D. Mich. 2006). Habeas relief does not lie 

for perceived errors of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also 

Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (state courts are the final arbiters of state law and the 

federal courts will not intervene in such matters) (citing Estelle; 502 U.S. at 67-68); Sanford v. 

Yukins, 288 F.3d 855,860 (6th Cir. 2002) (same). Thus, any error in scoring the offense variables 

and determining the guideline range does not merit habeas relief. 

Moreover, even ifthis claim were cognizable, Petitioner is not entitled to relief. The Court 

ofAppeals determined that OV 9 was properly scored. It stated: 

There was sufficient evidence on the record that two to nine people were 

placed in danger by defendant's manner of leaving the parking lot. The testimony 

showed that defendant put the truck in gear. The truck went in reverse and dragged 

Elrod across the parking lot, injuring her knee. Then, the truck went forward and left 

Elrod on the ground. Some ofthe workers and customers had followed Elrod to the 

parking lot and helped her back into the building. Gerald Long, a customer in the 

restaurant at the time of the incident, testified that he followed Elrod to the parking 

lot and saw the robber's face from about eight to ten feet away. 

In addition, Woods testified that defendant jumped in the truck on the 

passenger's side, started the ignition, and nearly pushed Woods out of the truck. 

Defendant backed the truck up and took off, with Woods hanging partially out the 

door. The evidence shows that at least two people were in danger of getting hit by 

8 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 8 of 19 Pg ID 754
the truck when defendant threw the truck in reverse and then sped out ofthe parking 

lot to escape. The trial court did not err in assessing 10 points for OV 9. 

Clements, 2007 WL 3085476, at *1. That decision is reasonable and is neither contrary to Supreme 

Court precedent nor an unreasonable application of federal law or the facts. 

The Court also finds that Petitioner is not entitled to reliefon any claim that he was sentenced 

based upon inaccurate information. "It is undisputed that convicted defendants, [], have a due 

process right to a fair sentencing procedure." United States v. Anders, 899 F.2d 570, 575 (6th Cir. 

1990). A sentence may violate federal due process ifit is carelessly or deliberately pronounced on 

an extensive and materially false foundation which the defendant had no opportunity to correct. 

Townsend v. Burke, 334 U.S. 736, 741 (1948); see also United States v. Tucker, 404 U.S. 443, 447 

(1972) (same); United States v. Sammons, 918 F.2d 592, 603 (6th Cir. 1990) (defendant must have 

meaningful opportunity to rebut contested information at sentencing). To prevail on such a claim, 

a petitioner must show that the trial judge relied on the allegedly false information. See United 

States v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984); Draughn v. Jabe, 803 F.Supp. 70, 81 (E.D. 

Mich. 1992). In this case, Petitioner makes no such showing. 

Rather, the state trial court considered the crime, the presentence report, and other 

permissible factors at sentencing. The trial court concluded that Petitioner endangered at least two 

people, as there were a number of bystanders standing around, unprotected, in the parking lot. 

Petitioner had an opportunity to contest the accuracy ofthe reports and the scoring ofthe guidelines. 

Petitioner has not shown that the trial court relied upon materially false or inaccurate information 

in imposing his sentence which he had no opportunity to correct. Furthermore, the Court ofAppeals 

found that the record supported the trial court's determination. Clements, 2007 WL 3085476, at 

*1. 

9
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 9 of 19 Pg ID 755
Accordingly, the Court concludes that habeas relief is not warranted with respect to 

Petitioner's sentencing claim. 

2. Claim 11- Prosecutorial Misconduct 

Petitioner next argues that the prosecutor committed misconduct by failing to tum over a 

photographic lineup to the defense and thereby violated the discovery order. Petitioner relies on 

Brady v. Maryland, 373 U.S. 83 (1963), in support of his argument. 

The Supreme Court explained in Brady that "suppression by the prosecution of evidence 

favorable to an accused upon request violates due process where the evidence is material either to 

guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 

U.S. at 87. "There are three components ofa true Brady violation: (1) the evidence at issue must be 

favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that 

evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice 

must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). 

Here, Woods gave the police the name of "Worm," as the man she was with when the 

restaurant was robbed. The police ran that name through the proper booking records and received 

information and a photograph ofPetitioner as the man believed to be "Worm." The detectives then 

conducted a six-photographic lineup with Woods, where she identified Petitioner as "Worm." 

On February 9, 2006, defense counsel filed a demand for discovery. On February 15,2006, 

the prosecutor responded to the discovery order, indicating that all requested materials had been 

provided and that the materials in the prosecutor's file were available to the defense for inspection. 

On the first day of trial, defense counsel learned that the prosecutor had possession of the 

photographic lineup. Counsel objected to its admission on the ground that he was never provided 

10
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 10 of 19 Pg ID 756
a copy of the lineup prior to trial. The prosecutor admitted that a mistake had been made and that 

it was not discovered until trial, because the case was reassigned from one detective to another and 

the final detective believed that a copy ofthe lineup had been provided to the defense but it was not. 

The trial judge concluded that it was not appropriate to declare a mistrial and that Petitioner did not 

suffer extreme prejudice by the error, because defense counsel was provided with an opportunity to 

talk with both officers, did not refer to it in his opening statements, and would have an opportunity 

to cross-examine both Woods and the detective in charge at trial. 

In addressing this claim, the Court of Appeals found: 

The trial court properly balanced the interests of the parties in allowing 

admission ofthe photographic lineup. The circumstances ofthe case showed that the 

lineup was not turned over during discovery due to an inadvertent mistake by the 

detectives. At the time of the court's decision, neither Woods nor Schmitzer had 

testified, so both parties had the opportunity to examine the witnesses regarding the 

identification process. Despite knowing about the lineup for only one day, defense 

counsel was able to elicit contradictory testimony between the two witnesses 

regarding the photographs shown and use that testimony to attack the credibility of 

the identification in his closing argument. There is no indication that the failure to 

turn overthe photographic lineup before trial was willful on the part ofthe prosecutor 

or that defendant was actually prejudiced by receiving the photographic lineup at 

trial. 

Clements, 2007 WL 3085476, at *5 (citation omitted). This Court concludes that the Court of 

Appeals's decision is not contrary to, or an unreasonable application of, clearly established Supreme 

Court precedent. Rather, the record reveals that the defense was not prejudiced by the trial court's 

denial ofthe motion for a mistrial. The prosecutor moved for admission ofthe photographic lineup 

through witness Woods. Defense counsel objected. The objection was sustained. The photographic 

lineup was subsequently admitted following the prosecutor's questioning of the detective and 

defense counsel's cross-examination of him. Thus, the Court concludes that Petitioner has failed 

11
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 11 of 19 Pg ID 757
to demonstrate a reasonable probability that the outcome of his proceedings would have been 

different had the photographic lineup been disclosed earlier. 

Accordingly, Petitioner is not entitled to habeas relief with respect to this claim. 

3. Claim 111- Improper Jury Instruction 

Petitioner next argues that the trial judge erred in instructing the jury that there was some 

evidence that he ran away after the crime. 

An erroneousjury instruction warrants habeas reliefonly where the instruction '" so infected 

the entire trial that the resulting conviction violates due process.'" Estelle, 502 U.S. at 72 (quoting 

Cupp v. Naughten, 414 U.S. 141, 147 (1973». "'[l]t must be established not merely that the 

instruction is undesirable, erroneous, or even 'universally condemned', but that it violated some 

[constitutional] right.'" Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (quoting Cupp, 414 

U.S. at 146). A jury instruction may not be judgedin artificial isolation, but must be considered in 

the context ofthe instructions as a whole and the trial record. See Johnson v. Smith, 219 F.Supp.2d 

871,882 (E.D. Mich. 2002). 

The trial judge gave the following instruction: 

There's been some evidence that the Defendant ran away after the alleged 

crime he was accused of. The crime, the police arrested him-let me go back here. 

There's been some evidence that the Defendant ran away after the alleged crime he 

was accused of. The police tried to arrest him. This evidence does not prove guilt. 

A person may run or hide for innocent reasons, such as panic, mistake or fear. 

However, a person may run or hide because of a consciousness of guilt. You must 

decide whether the evidence is true. And iftrue, whether it shows the Defendant had 

a guilty state of mind. 

Trial Tr. vol. II, 210 June 7, 2006. 

12
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 12 of 19 Pg ID 758
Under Michigan law, flight is relevant to prove a defendant's consciousness of guilt. 

Johnson v. Burke, 903 F.2d 1056, 1062 (6th Cir. 1990) (internal citations omitted). Thus, in this 

case, the giving ofa flight instruction did not violate Petitioner's due process rights or render the trial 

fundamentally unfair, particularly in light ofthe fact that the flight instruction directedjurorsto make 

their own determinations as to whether Petitioner did in fact attempt to flee the scene and ifso, what 

state ofmind such flight evinced. See Burton v. Renico, 391 F.3d 764, 778 (6th Cir. 2004); see also 

United States v. Carter, 236 F.3d 777, 792 n.11 (6th Cir. 2001) (not an abuse of discretion for the 

district court to give a flight instruction, though defendant may have had a reason to flee from 

officers other than guilt of the criminal charge, where the instruction stated that evidence of flight 

mayor may not indicate a defendant's guilty conscience or intent to avoid punishment). 

With that, the Court concludes that Petitioner's claim is noncognizable in these proceedings 

and thus, he is not entitled to habeas relief on this claim. 

4. Claim IV-Ineffective Assistance Of Counsel 

In his final habeas claim, Petitioner alleges that trial counsel was ineffective for failing to 

object when the trial court required the jury to determine whether Woods was an accomplice before 

applying the instruction on accomplice testimony, and for using a photograph ofAlex Williams, who 

he believed looked like him, in questioning Woods, but then failed to move for its admission into 

evidence. 

InStricklandv. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth 

a two-prong test for determining whether a habeas petitioner has received the ineffective assistance 

of counsel. First, a petitioner must prove that counsel's performance was deficient. This requires 

a showing that counsel made errors so serious that he or she was not functioning as counsel as 

13
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 13 of 19 Pg ID 759
guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the petitioner must 

establish that counsel's deficient performance prejudiced the defense. Counsel's errors must have 

been so serious that they deprived the petitioner of a fair trial or appeal. Id. 

As to the performance prong, a petitioner must identify acts that were "outside the wide range 

of professionally competent assistance" in order to prove deficient performance. Strickland, 466 

U.S. at 690. The reviewing court's scrutiny of counsel's performance is highly deferential. Id. at 

689. Counsel is strongly presumed to have rendered adequate assistance and made all significant 

decisions in the exercise of reasonable professional judgment. Id. at 690. The petitioner bears the 

burden of overcoming the presumption that the challenged actions were sound trial strategy. Id. at 

689. 

To satisfy the prejudice prong under Strickland, a petitioner must show that "there is a 

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding 

would have been different." Strickland, 466 U.S. at 694. A reasonable probability is one that is 

sufficient to undermine confidence in the outcome. Id. "On balance, the benchmark for judging any 

claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning 

ofthe adversarial processthat the [proceeding] cannot be relied on as having produced a just result." 

Id. at 686. 

The Supreme Court has recently confirmed that a federal court's consideration ofineffective 

assistance of counsel claims arising from state criminal proceedings is quite limited on habeas 

review due to the deference accorded trial attorneys and state appellate courts reviewing their 

performance. "The standards created by Strickland and § 2254(d) are both 'highly deferential,' and 

when the two apply in tandem, review is 'doubly' so." Harrington, --- U.S. ---, 131 S.Ct. at 788 

14
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 14 of 19 Pg ID 760
(internal and end citations omitted). "When § 2254(d) applies, the question is not whether counsel's 

actions were reasonable. The question is whether there is any reasonable argument that counsel 

satisfied Strickland's deferential standard." ld. 

a. Jury Instructions 

In addressing Petitioner's claim that trial counsel was ineffective for failing to object to the 

trial court requiring the jury to determine that Woods was an accomplice before giving the 

accomplice jury instruction, the Court ofAppeals found that, because there was no error in the jury 

instructions as given, defense counsel was not ineffective for failing to object. 

In discussing the jury instructions, the prosecutor, the defense counsel, and the trial judge all 

agreed that there was a dispute with respect as to whether Woods was an accomplice to Petitioner's 

offense. Trial Tr. vol. II, 165-72 June 7, 2006. The trial judge gave the disputed accomplice 

instruction, CJl2d 5.5, followed by the cautionary instruction for accomplice testimony, CJl2d 5.6. 

The trial judge noted that the use instruction for 5.5 said, "ifthere [was] a dispute as to the status of 

the witness as an accomplice, [that] fact should be submitted to the jury as a separate question for 

its deliberation." Trial Tr. vol. II, 170 June 7, 2006. The trial judge then suggested that the Verdict 

Form should "include a question as to whether the jurors find that she is an accomplice or not." ld. 

The prosecutor and the defense counsel agreed with the trial judge. 

The Court of Appeals in addressing this issue stated: 

Defendant argues that submitting the question of Woods's status as an 

accomplice to the jury in this manner necessarily meant that the jury had to agree 

beyond a reasonable doubt that Woods was an accomplice before viewing her 

testimony with caution. However, when the court explained the verdict form to the 

jury, it never used the words "beyond a reasonable doubt." The court specifically 

stated that the answer to the question would determine how the jury should treat 

Woods's testimony based on the court's instructions, and it then summarized the 

15
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 15 of 19 Pg ID 761
instructions for accomplice testimony. Juries are presumed to follow the court's 

instructions. In addition, after explaining the verdict form, the court asked the jurors 

to raise their hands if they did not understand, and there were no hands raised. The 

trial court did not err in following the directions provided in the notes for the 

standard jury instructions, and there is no indication that the jury did not follow the 

instructions. 

Because there was no error in the jury instructions as given, defense counsel 

was not ineffective for failing to object to the instructions. "Trial counsel is not 

required to advocate a meritless position." In addition, defense counsel attacked 

Woods's credibility throughout the testimony by establishing that Woods accepted 

a plea agreement to testify against any codefendant and complete a drug rehabilitation 

program in exchange for dismissal of the charges against her. The evidence shows 

that trial counsel's performance did not fall below an objective standard of 

reasonableness, and defendant was not deprived of a fair trial. 

Clements, 2007 WL 3085476, at *3 (citations omitted). 

An attorney's failure to object to jury instructions is deficient only if the petitioner can 

establish that the instructions were inaccurate and that, therefore, an objection would have been 

sustained. Daniels v. Lafler, 501 F.3d 740, 743 (6th Cir. 2007) (citation omitted). "And, to 

demonstrate prejudice, a petitioner 'must show that there is a reasonable probability that, but for 

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

(quoting Strickland, 466 U.S. at 694); see also Premo v. Moore, --- U.S. ---, 131 S.Ct. 733, 739 

(2011) (same). 

Here, the trial court specifically instructed the jury as to Woods's deal with the prosecution 

in exchange for her testimony. Michigan courts presume thatjuriesfollow their instructions. People 

v. Graves, 458 Mich. 476, 581 N.W.2d 229, 234 (1998). Furthermore, in order to receive federal 

habeas relief from incorrect jury instructions, Petitioner must show that the instructions were so 

infirm as to render the entire trial fundamentally unfair. Estelle, 502 U.S. at 72. Here, the Michigan 

16
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 16 of 19 Pg ID 762
appellate courts determined that the jury instructions were proper as a matter ofstate law, and thus 

Petitioner's counsel was not ineffective on that basis. 

This Court concludes that the Court ofAppeals's resolution ofthis issue was neither contrary 

to, or an unreasonable application of, clearly established Federal law as determined by the Supreme 

Court; nor was the decision based on an unreasonable determination of the facts in light of the 

evidence presented. 28 U.S.C. § 2254(d). Accordingly, Petitioner is not entitled to habeas reliefon 

this claim. 

b. Photograph Evidence 

Petitioner also argues that trial counsel's failure to submit a picture of Alex Williams into 

evidence denied him a fair trial. He claimsthat the admission ofthe photograph as an exhibit would 

have rendered a different result in his case. 

Decisions as to what evidence to present and whether to call certain witnesses are presumed 

to be a matter oftrial strategy, and the failure to call witnesses or present other evidence constitutes 

ineffective assistance of counsel only when it deprives a defendant of a substantial defense. See 

Hutchison v. Bell, 303 F.3d 720,749 (6th Cir. 2002),' Chegwidden v. Kapture, 92 F.App'x 309, 311 

(6th Cir. 2004). When making strategic decisions, counsel's conduct must be reasonable. See Roe 

v. Flores-Ortega, 528 U.S. 470, 481 (2000). 

The Court ofAppeals, in addressing, and rejecting, this claim stated: 

Next, defendant contends that counsel was ineffective for using a photograph 

of Alex Williams, who looked remarkably like defendant, in the questioning of 

Woods but failing to offer the photograph as an exhibit. During her testimony, 

Woods vehemently denied that she could have mistaken defendant for the man in the 

photograph. We note that defense counsel has a duty to consult with the defendant 

regarding important decisions, such as the overall defense strategy, but not regarding 

every tactical decision. Defense counsel's decision not to offer the photograph into 

17
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 17 of 19 Pg ID 763
evidence after Woods testified that she was positive the man in the photograph was 

not the perpetrator was a minor tactical decision. Given Woods's testimony, we 

conclude that there is no reasonable probability that the admission ofthe photograph 

would have affected the outcome of the trial, and reversal is thus unwarranted. 

Clements, 2007 WL 3085476, at *7 (citations omitted). 

This Court agrees with the Court of Appeals's conclusion. A review of the record 

demonstrates that defense counsel adequately presented a defense theory, called witnesses, and 

effectively cross-examined those witnesses and explored inconsistencies in their testimony. 

Accordingly, the Court concludes that Petitioner is not entitled to habeas relief with respect to this 

claim. 

IV. CONCLUSION 

For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas 

relief on the claims contained his Petition and that the Petition for a Writ of Habeas Corpus must be 

denied. 

Before Petitioner may appeal the Court's decision, a certificate of appealability must issue. 

See 28 U.S.C. § 2253(c)(l)(a); Fed.R.App.P. 22(b). 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). When a federal court rejects a habeas claim on the merits, the substantial showing 

threshold is met if the petitioner demonstrates that reasonable jurists would find the 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 could conclude 

the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. 

Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, a court may not conduct a full merits 

18
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 18 of 19 Pg ID 764
review but must limit its examination to a threshold inquiry into the underlying merit ofthe claims. 

Id. at 336-37. 

Having conducted the requisite review, the Court concludes that Petitioner has failed to make 

a substantial showing ofthe denial ofa constitutional right as to his habeas claims. A Certificate of 

Appealability is not warranted. The Court further concludes that Petitioner should not be granted 

an Application for Leave to Proceed In Forma Pauperis on appeal, as any appeal would be frivolous 

and cannot be taken in good faith. See Fed.R.App.P. 24(a). 

Accordingly; 

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

DISMISSED WITH PREJUDICE. 

IT IS FURTHER ORDERED that the Court DECLINES to issue Petitioner a Certificate 

ofAppealability. The Court also DENIES Petitioner an Application for Leave to Proceed In Forma 

Pauperis On Appeal should he decide to appeal this decision, because any appeal would be 

frivolous. See Fed.R.App.P. 24(a). 

~~PAUL D. BORMAN 

UNITED STATES DISTRICT JUDGE 

DATED: I0 --.). b-1/ 

19
 

2:08-cv-14270-PDB-DAS Doc # 19 Filed 10/26/11 Pg 19 of 19 Pg ID 765