UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEARY GILMORE, 

 

Petitioner, Case No. 2:09-cv-10110

 Hon. Nancy G. Edmunds

v.

SHIRLEE HARRY

Respondent.

_____________________________________/

OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS,

(2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) GRANTING

PERMISSION TO APPEAL IN FORMA PAUPERIS

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

Petitioner Geary Gilmore is serving a mandatory life sentence for his 1974 Wayne Circuit

Court jury trial conviction of two counts of first-degree murder. MICH. COMP. LAWS §

750.316. The petition raises two claims: (1) Petitioner was denied the effective assistance

of counsel when Petitioner’s appellate attorney failed to raise claims on direct appeal that

were clearly stronger than the claims that were presented to the Michigan Court of Appeals,

and (2) newly discovered evidence demonstrates that Petitioner is actually innocent. The

Court finds that Petitioner’s claims are without merit. Therefore, the petition will be denied.

The Court will also deny Petitioner a certificate of appealability, but it will grant Petitioner

permission to proceed on appeal in forma pauperis.

I. Background

This action arises out of the abduction and murder of two young boys, Gerald Kraft

and Keith Arnold, in early December of 1973. Petitioner was tried jointly with co-defendants

Byron Smith and Jerome Holloway. The Michigan Court of Appeals summarized the trial

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evidence in its consolidated opinion affirming the thee defendants’ convictions. This

recitation of the evidence is presumed to be correct. 28 U.S.C. § 2254(e)(1); Wagner v.

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

In simplified terms, the facts of this matter arose in the following order.

On December 1, 1973, Keith Arnold and Gerald Kraft, aged six years and

eight years respectively, disappeared in late afternoon while playing near

their homes on Inverness in the city of Detroit.

At 9:00 o’clock that evening, Roy Hillyer, a friend of the Arnold family,

received a telephone call demanding fifty-three thousand dollars ransom for

the return of the children. Police were notified immediately and telephone

surveillance was established.

Two subsequent calls were received on December 1 and December

2, 1973, one taken by Marjorie Arnold, the mother, and one by Linda Ellis,

Keith Arnold’s sister. Both calls demanded ransom in the same general

amount. Linda Ellis later testified that the calls she received all seemed made

by the same person.

As ordered, Roy Hillyer went to a specified public telephone booth on

December 2, 1973, where he received a call instructing him to deliver a bag

with the ransom to an address on Griggs Street. The delivery was made with

a dummy ransom bag. Meanwhile, police had established surveillance at the

telephone booth. After some moments, officers observed defendant Smith

come to the booth, lift the receiver and look around. Testimony also placed

defendant Holloway in the immediate area of the dummy drop at the same

time.

On December 4, 1973, the Wayne County Sheriff’s office reported

finding the boys’ bodies in two fields located in Romulus, Michigan. The boys

had each been shot twice in the head from the same weapon. Neighbors

reported hearing the shots the previous evening about 7:00 o’clock.

At trial, various prosecution witnesses placed all three defendants and

the two kidnapped boys in the 14th Street apartment of Fannie Johnson,

sister-in-law of defendant Gilmore, on the evening of December 1, 1973. The

two boys remained there until December 3, 1973. At least one of the

defendants was there at all times during this period. On the morning after the

boys’ bodies were discovered, police found defendant Gilmore at an

apartment on Schaeffer Road and placed him under arrest. Defendant Smith

was arrested on December 4, 1973 in the company of an acquaintance,

Lucinda Prewitt. Defendant Holloway voluntarily surrendered himself to police

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on December 5, 1973.

People v. Gilmore, 73 Mich. App. 463, 466–467 (1977). 

The statement of facts appearing in the amended petition contains additional detail

regarding Petitioner’s trial. See Dkt. 6, at Pg ID 37-44, 89-91. In addition to the facts recited

by the Michigan Court of Appeals, the prosecutor’s case against Petitioner rested in large

part on five witnesses who testified that they saw him with his two co-defendants and the

two victims at his apartment over the weekend of December 1, 1973. Fannie Johnson (who

was Petitioner’s sister-in-law and lived at the apartment), Jacqueline Wesley, Denise

James, Carol Payne, and Lucinda Pruwitt all testified that they were at Petitioner’s

apartment during the weekend. They all saw the three defendants with the boys at the

apartment during various times during the weekend. Pruwitt testified that at some point on

Sunday December 2nd, the three defendants left the apartment with the two boys in her

car. She heard Petitioner tell the boys that they were going home. The three defendants

arrived back at the apartment about an hour and one-half later without the two boys. 

A subsequent search of Petitioner’s apartment by the police revealed two .32 caliber

cartridges that matched the casings found next to one of the boy’s bodies. Police also

found a button from an article of clothing from one of the victims. Finally, latent fingerprints

from both victims were found in the apartment. 

Petitioner presented defense witnesses Ester Johnson, Clarence Fields, Harry

Gilmore, and Deborah Lowery, who all testified that they visited Petitioner’s apartment

during various stretches of the weekend. These witnesses contradicted the prosecution

witnesses’ testimony about the two co-defendants presence at the apartment as well as the

testimony that the boys stayed overnight. Another witness testified that Petitioner was at

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his body shop for car repairs on the evening of December 1, 1973. 

Petitioner’s sister testified that Gary Braceful and another man arrived at the

apartment on Saturday evening with the two boys, but they were gone by 10:00 pm. A few

of the prosecutor’s witnesses also testified that they saw Braceful at Petitioner’s apartment

during the weekend. 

Petitioner testified that Braceful and another man came to his apartment with two

kids on Saturday evening. Braceful asked Petitioner for a gun, Petitioner refused, and

Braceful left with the boys around 8:30 pm. Petitioner also testified that his two codefendants visited his apartment during the weekend. 

The prosecutor presented evidence in its rebuttal case that Braceful was murdered

a few days after the boys were shot, and he was killed with the same gun that was used

to kill the boys.

Following his conviction, Petitioner obtained appellate counsel who filed an appeal

by right. Petitioner’s appellate brief raised five claims: 1) the trial court erred in refusing to

sever Petitioner’s trial from Smith and Holloway’s trial, 2) the trial court erred in admitting

evidence that Gary Braceful was killed with the same gun used to kill the boys, 3) the

prosecutor committed misconduct during closing argument, 4) the trial court erred in

admitting voice-print evidence from the ransom demand calls, and 5) the search warrant

for Petitioner’s residence was invalid because is was based on previous illegal activity.

Gilmore, supra. The Michigan Court of Appeals rejected these claims and affirmed

Petitioner’s convictions. Petitioner appealed the decision, but the Michigan Supreme Court

denied leave to appeal. People v. Gilmore, 402 Mich. 803 (1977) (table). Petitioner then

unsuccessfully pursued federal habeas relief. See Gilmore v. Koehler, 709 F.2d 1502, 1983

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U.S. App. LEXIS 13430 (6th Cir. 1983).

On April 8, 2004, Petitioner filed a motion for relief from judgment in the trial court

asserting among a host of other claims that he was denied the effective assistance of

appellate counsel. See Dkt. 54, Exhibit A. Specifically, Petitioner claimed that his appellate

counsel was ineffective for failing to raise the following claims: 1) the trial court failed to

swear the jurors, 2) the trial court made prejudicial comments, 3) the trial court failed to

properly instruct the jury on his alibi defense, 4) the trial court failed to allow Petitioner to

examine a document used to refresh the recollection of a witness, 5) the trial court

erroneously admitted a non-testifying co-defendant’s statement, 6) the prosecutor offered

perjured testimony at trial, 7) the trial court allowed admission of evidence that Petitioner

was poor and unemployed, 8) the trial court allowed admission of Petitioner’s silence after

his arrest, and 9) Petitioner’s Fourth Amendment rights were violated. Id., Exhibit A, p. 6. 

On October 18, 2004, the trial court denied Petitioner’s motion for relief from

judgment. See Dkt. 47-3. In pertinent part, the trial court found:

With regard to the claim of ineffective assistance of appellate counsel the

defendant must show that a reasonable appellate attorney could not have

concluded that the issues were not worthy of mention on appeal. People v.

Reed, 449 Mich. 375 [(1995)]. The defendant has not demonstrated that his

appellate counsel’s performance fell below an objective standard of

reasonableness as required.

Id, p. 25.

Petitioner appealed this decision, but the Michigan Court of Appeals denied leave

for “failure to meet the burden of establishing entitlement to relief under Michigan Court

Rule 6.508(D).” People v. Gilmore, No. 265879 (Mich. Ct. App. May 4, 2006). The Michigan

Supreme Court denied relief under the same court rule. People v. Gilmore, 477 Mich. 912

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(2006) (table).

On June 1, 2007, Dennis M. Elliot, serving a term of mandatory life imprisonment

for his own first-degree murder conviction, signed an affidavit. The affidavit alleges that in

early December of 1973 he was in a car with Gary Braceful, Larry Lester, a woman known

to him as “Star,” and the two kidnaping victims. He states that they went to an apartment

where they met Petitioner and his sister to buy drugs. The boys were brought into the

apartment as well. Elliot saw Braceful produce a handgun. He went outside and fired two

shots. Braceful then came back inside and threw away two shell casings from the gun. 

Elliot and Braceful purchased drugs and left. Lester then dropped the two boys off at

another house with Braceful and Star. Rossi Maclin, a prisoner advocate, signed an

affidavit on July 11, 2007, explaining how she connected Elliot with Petitioner while she was

helping Elliot with his own habeas petition. 

On January 31, 2008, Petitioner then filed a second motion for relief from judgment

in the state trial court relying on this newly discovered evidence. While that motion was

pending, Petitioner sought and received permission from the Sixth Circuit to file a second

federal habeas petition. On January 9, 2009, Gilmore filed the instant case and a motion

to hold the case in abeyance while he completed exhaustion of his claims in the state

courts. On August 18, 2009, this Court granted Petitioner’s motion to stay.

The trial court denied Petitioner’s second motion for relief from Judgment on June

3, 2011. Dkt. 47-11. The opinion cited Michigan Court Rule 6.502(G), which generally

prohibits a defendant from filing a successive post-conviction motion. The lengthy opinion

also adopted almost verbatim a large part of the prosecutor’s answer to Petitioner’s 2004

motion for relief from judgment, discussing and rejecting on the merits seven of the nine

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claims that Petitioner asserts his appellate counsel should have raised on direct appeal.

Petitioner appealed this decision, but the Michigan Court of Appeals dismissed the

appeal “for lack of jurisdiction” citing Rule 6.502(G). People v. Gilmore, No. 306437 (Mich.

Ct. App. Oct. 28, 2011). Petitioner again appealed, but the Michigan Supreme Court denied

an application “because the defendant’s motion for relief from judgment is prohibited by

Michigan Court Rule 6.502(G).” People v. Gilmore, 492 Mich. 853 (2012) (table).

On December 12, 2012, the case was reopened. Respondent filed a motion for

summary judgment, asserting that the petition was filed after expiration of the one-year

statute of limitations. The Court granted the motion, but the Sixth Circuit reversed and

remanded for further proceedings. Gilmore v Berghuis, No. 13-2008 (6th Cir. Jan. 30,

2015). The case is now ready for decision. 

II. Standard of Review

28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims raised

by a state prisoner in a habeas action if the claims were adjudicated on the merits by the

state courts. Relief is bared under this section unless the state court adjudication was

“contrary to” or resulted in an “unreasonable application of” clearly established Supreme

Court law. 

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

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

set of facts that are materially indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives at a result different from [this] precedent.’” Mitchell v. Esparza, 540

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

(2000). 

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“[T]he ‘unreasonable application’ prong of the statute 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. 

“A state court’s determination that a claim lacks merit precludes federal habeas relief

so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S.86, 101 (2011), quoting Yarborough v. Alvarado,

541 U.S. 652, 664 (2004). “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. . . . 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.” Harrington, 562 U.S. at 103 (internal quotation omitted).

III. Analysis

A. Procedural Defenses

Respondent argues that Petitioner’s ineffective assistance of appellate counsel claim

is procedurally barred from review because the claim was raised in his second state postconviction review proceeding and the state courts denied relief because Petitioner was

prohibited from filing the proceeding under Michigan Court Rule 6.508(G). Petitioner rejoins

by noting that he presented the claim to the state courts in his first post-conviction review

proceeding as well, and that his claim is therefore not defaulted for the reasons given by

Respondent.

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The Court need not resolve this dispute, and it will proceed directly to the merits of

Petitioner’s claim without consideration of whether it is procedurally defaulted because the

claim lacks substantive merit and a procedural-default analysis “adds nothing but

complexity to the case.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010).

Respondent also asserts that Petitioner’s claim fails because at the time of his direct

appeal the Supreme Court had not yet recognized a right to the effective assistance of

counsel on direct appeal. See Teague v. Lane, 489 U.S. 288 (1989) (habeas relief is

unavailable for claims based on new rules of constitutional law). The Supreme Court did

not explicitly recognize the right to the effective assistance of counsel on appeal until it

decided Evitts v. Lucey, 469 U.S. 387 (1985). However, the Court characterized it’s ruling

as “hardly novel,” and discussed how the result was dictated by existing precedent. Id., at

396-397. The Court will therefore assume for purposes of this opinion that the right to

effective assistance of counsel on direct appeal existed at the time of Petitioner’s direct

appeal.

B. Ineffective Assistance of Appellate Counsel

Petitioner claims that he was deprived of the effective assistance of appellate

counsel during his direct appeal because his counsel did not raise nine claims that were

clearly stronger than the five claims that were presented.

As an initial matter, Petitioner asserts that his claim is not subject to the limitations

of review set forth in § 2254(d) because it was not adjudicated on the merits by the state

courts. See Dkt. 6, at 52. This assertion is incorrect. As noted above, the trial court denied

Petitioner’s ineffective assistance of appellate counsel claim on the merits when it denied

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his first motion for relief from judgment.1

 The trial court found that “defendant has not

demonstrated that his appellate counsel’s performance fell below an objective standard of

reasonableness.” Dkt. 47-3, at 25. This brief decision by the trial court constitutes an

adjudication on the merits of Petitioner’s claim that is entitled to the deference afforded by

§ 2254(d).2

 Petitioner’s claim is therefore subject to the limitations of review imposed by §

2254(d). 

Petitioner seeks an evidentiary hearing to support his claim. In Cullen v. Pinholster,

563 U.S. 170 (2011), the Supreme Court held that where a habeas claim has been decided

on the merits in state court, a federal court’s review under 28 U.S.C. § 2254(d)(1)—whether

the state court determination was contrary to or an unreasonable application of established

federal law—must be confined to the record that was before the state court. 563 U.S. at

181-82. The Pinholster Court specifically found that the District Court should not have held

an evidentiary hearing regarding the petitioner’s claims until after the Court determined that

the petition survived review under § 2254(d)(1). Here, contrary to Petitioner’s argument, the

1

The subsequent decisions by the state appellate courts denying relief under Michigan Court

Rule 6.508(D) are “unexplained decisions.” See Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir.

2010) (en banc). This Court must “therefore look to the last reasoned state court opinion to

determine the basis for the state court’s rejection” of Petitioner’s claim. Id. Here, that is the brief

decision on the merits by the trial court. Also relevant is the trial court’s opinion denying

Petitioner’s second motion for relief from judgment which discusses the merits of seven of the

claims Petitioner asserts his appellate counsel failed to raise. See Dkt. 47-11, at 4-41.

2

 Because the trial court only resolved Petitioner’s claim with respect to the deficient

performance prong of the Strickland test, that is the only portion of the claim that is entitled to

deference. See Porter v. McCollum, 558 U.S. 30, 39 (2009) (per curiam) (reviewing deficiency

de novo when state court denied claim entirely on prejudice); Rayner v. Mills, 685 F.3d 631, 638

(6th Cir. 2012) (“When a state court relied only on one Strickland prong to adjudicate an

ineffective assistance of counsel claim, AEDPA deference does not apply to review of the

Strickland prong not relied upon by the state court.”).

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state trial court did adjudicate Petitioner’s claims on the merits. Therefore, this Court is

limited to the record before the state court. 

To show that he was denied the effective assistance of counsel under federal

constitutional standards, a defendant must satisfy a two-prong test. First, the defendant

must demonstrate that, considering all of the circumstances, counsel’s performance was

so deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth

Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the

defendant must overcome a strong presumption that counsel’s behavior lies within the wide

range of reasonable professional assistance. Id. In other words, Petitioner must overcome

the presumption that, under the circumstances, the challenged action might be sound

strategy. Id. at 689. Second, the defendant must show that such performance prejudiced

his defense. Id. The Strickland standard applies to claims of ineffective assistance of

appellate counsel. See Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005). 

It is well established that a criminal defendant does not have a constitutional right

to have appellate counsel raise every non-frivolous issue on appeal. See Jones v. Barnes,

463 U.S. 745, 751 (1983). The Supreme Court has explained:

For judges to second-guess reasonable professional judgments and impose

on appointed counsel a duty to raise every “colorable” claim suggested by a

client would disserve the . . . goal of vigorous and effective advocacy. . . .

Nothing in the Constitution or our interpretation of that document requires

such a standard.

Id. at 754.

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). “Generally, only when ignored issues are clearly stronger than

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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 identifies nine claims that his appellate counsel was ineffective for failing

to raise during his direct appeal: 1) the jury was never properly sworn in, 2) the trial court

made improper remarks, 3) the trial court failed to allow Petitioner to inspect a document

used to refresh the recollection of a witness, 4) the admission of co-defendant Holloway’s

statements violated Petitioner’s confrontation rights, 5) the prosecutor presented the

perjured testimony of Carol Payne, 6) the trial court allowed admission of evidence of

Petitioner’s poverty and unemployment, 7) the trial court allowed admission of evidence

that Petitioner remained silent when he was arrested, 8) Petitioner’s rights under the Fourth

Amendment were denied when the police committed perjury to obtain a search warrant,

and 9) the trial court erroneously instructed the jury regarding Petitioner’s alibi defense. Dkt.

10, at 40-77. The Court finds that none of these claims is clearly stronger than the ones

raised by appellate counsel, and therefore Petitioner’s appellate counsel did not perform

deficiently. More to the point, the decision by the state court rejecting this claim on the

merits did not fall beyond any possibility for fairminded disagreement. Therefore, Petitioner

has failed to demonstrate entitlement to relief under § 2254(d). Harrington, 562 U.S. at 103.

1.

First, Petitioner asserts that jury was never administered an oath, and this failure

presented a “dead bang winner” for appeal. The prosecutor’s response to Petitioner’s first

motion for summary judgment conceded that the transcript does not reflect that the oath

was administered, but it noted that during trial the prosecutor, defense counsel, and the trial

court all referred to the oath that the jurors had taken. The prosecutor also noted that the

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trial court case file no longer exists, but at the time of Petitioner’s direct appeal, it may have

contained a notation from the court clerk that the jury was sworn. 

“The swearing of the jury generally involves a matter of state law that is not

cognizable in federal habeas review.” Calloway v. McQuiggin, No. 2:11-CV-10005, 2013

U.S. Dist. LEXIS 127237, 2013 WL 4784412, at *4 (E.D. Mich. Sept. 6, 2013). Under state

law, a clerk of the court’s note indicating that a jury was sworn is sufficient to establish that

the jury was properly sworn despite the absence of such a notation to that effect in the trial

transcripts. See People v. Jackson, 100 Mich. App. 146, 153-54 (1980) (“The only

indication that the jury was sworn is found in the notes taken by the clerk of the court.”);

People v. Livingston, 57 Mich. App. 726, 734 (1975) (“Though the transcript does not

indicate that the jury was ever sworn, the work sheet for the clerk of the Recorder’s Court

dated May 22, 1973, an official part of the lower court file, states that the jury was indeed

sworn on that date.”).

There is no indication in the record what information appellate counsel had or did

not have regarding the swearing in of the jury. Jackson and Livingston support the position

taken by the prosecutor that during this time period the swearing in of the jury could have

been noted in the trial court’s case file but not in the transcript. Furthermore, the references

at trial by defense counsel, the prosecutor, and the trial court to the jury having taken the

oath, suggests that the oath was administered. 

Absent conclusive evidence, Strickland’s deferential standard and AEDPA’s doubly

deferential standard require a finding that counsel’s performance was not deficient. Beuke

v. Houk, 537 F.3d 618, 644 (6th Cir. 2008) (rejecting ineffective-assistance claim on habeas

review where petitioner “ask[ed] this court to assume,” based on “sheer speculation,” that

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his trial counsel did not perform an adequate mitigation investigation and where petitioner

failed to provide “enough evidence to confirm or deny that conclusion”). There simply is no

evidence, and due to the passage of time none can ever be developed, as to whether

appellate counsel investigated this issue and reviewed the trial court’s case file. The

burden to demonstrate ineffective assistance of counsel falls on Petitioner, and he had not

done so. 

Petitioner asserts that waiver of a fundamental right, such as the right to a properly

sworn jury, cannot be inferred from a silent record. See, e.g., Carnley v. Cochran, 369 U.S.

506 (1962). But this is not an issue of the waiver of a fundamental right. The prosecutor

never argued that Petitioner waived his right to have a properly sworn jury. The argument

presented by the prosecutor was that the jury may have been sworn without it ever having

appeared in the trial transcript. Petitioner has offered this Court no evidence from anyone

who was present in the courtroom during his trial to support his allegation that the jury was

never given its oath. The suggestion in Jackson and Livingston that the jury’s oath did not

always appear in the transcript during this time period provides support that this claim was

not as obvious as Petitioner asserts. There is therefore no basis in the record to conclude

that this claim was clearly stronger than the claims that were raised on direct appeal, and

appellate counsel did not perform deficiently by omitting it.

2. 

Petitioner next argues that the trial court made improper remarks undermining

defense counsel and his theory of defense. A defendant has a right to a trial before an

impartial judge. Tumey v. Ohio, 273 U.S. 510, 535 (1927). But comments that do not exhibit

favoritism or antagonism for a party are insufficient to establish judicial bias. See Liteky v.

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United States, 510 U.S. 540, 555 (1994). Indeed, “expressions of impatience,

dissatisfaction, annoyance, and even anger” are insufficient to show bias. Id. at 555-56.

Petitioner quotes multiple instances in the trial record where the trial court made

comments or rulings expressing what appears to be exasperation or annoyance at

objections or lines of questioning by defense counsel. The prosecutor’s response to

Petitioner’s first motion for relief from judgment noted that the trial transcript consists of

4000 pages, and that the challenged remarks made up a very small part of the record. The

prosecutor then went on to examine each of the challenged comments, and showed how

viewed in context the rulings were reasonable and did not indicate any bias against

Petitioner or his counsel. See Dkt. 47-2, at 53-66. Given the standard for adjudicating

judicial bias claims, it is easy to see why Petitioner’s appellate counsel would forgo such

a claim in light of the facts even as set-forth by Petitioner. This claim is not clearly stronger

than the ones raised on direct appeal. 

3. 

Petitioner next asserts that the trial court erred in failing to allow him to examine a

document used to refresh the recollection of prosecution witness Payne. The trial court

summarized the factual basis underlying this claim. The prosecutor met with Payne prior

to trial, and during the meeting she made statements implicating Petitioner. The prosecutor

made notes of her statements and included it in his outline for her direct examination. After

the prosecutor used one page of his notes to refresh Payne’s recollection, the trial court

sustained the prosecutor’s objection to Petitioner’s request to examine the entire document.

According to the trial court, Petitioner was allowed to examine the page used to refresh the

recollection of the witness. See Dkt. 47-11, at 18-21. Petitioner vehemently disagrees that

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his counsel was permitted to examine the page, but he has not pointed to clear and

convincing evidence that the recitation by the state trial court of what occurred is incorrect.

See U.S.C. § 2254(e)(1). Petitioner has therefore failed to show that he had a strong claim

of error based on the trial court’s decision to not allow his trial counsel to see portions of

the prosecutor’s trial materials that were not used to refresh the witness’s recollection.

Appellate counsel was not ineffective for failing to raise this claim during Petitioner’s direct

appeal.

4. 

Petitioner next asserts that the admission of co-defendant Holloway’s statements

at trial violated his rights under the Sixth Amendment Confrontation Clause because

Holloway did not testify and was not subject to cross-examination. 

Again, the trial court recounted the facts underlying this claim. Dkt. 47-11, at 21-25.

Over Petitioner’s objection, Carrol Payne testified at trial to statements Holloway made to

her both at the apartment while Petitioner and Smith were present, and then to statements

he made to her after the murder. Most notably, after the murder Holloway made statements

lamenting what had occurred, stating: “All that blood. All that blood. Why did they do it?”

Id., 24. Payne testified that Holloway did not identify who “they” referred to. Id. The trial

court instructed the jury to disregard the testimony as it related to Petitioner and Smith. 

 In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court ruled that the

admission at a joint trial of a non-testifying co-defendant’s confession to police which

implicates the defendant violates the Confrontation Clause even if the trial court instructs

the jury not to consider the incriminating statements in determining the defendant’s guilt.

An exception to this rule is recognized when the co-defendant’s confession is redacted.

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Richardson v. Marsh, 481 U.S. 200, 211 (1987). In Marsh, the Court held that when the

statement of a non-testifying co-defendant is not facially incriminating and the jury is given

a limiting instruction, admission of the statement does not violate a defendant’s right to

confrontation. Id. at 207-09. Here, in denying Petitioner’s second motion for relief from

judgment, the trial court noted that Holloway’s statements to Payne were not facially

incriminating to Petitioner. Thus, it found that the trial court’s limiting instructions were

sufficient to protect Petitioner’s rights. Petitioner disagrees. He claims that under Gray v.

Maryland, 523 U.S. 185 (1998), where a co-defendant’s statement creates an obvious

inference to the defendant, the Bruton prohibition applies notwithstanding Marsh. 

The Court need not resolve this debate because–as a predicate to an ineffective

assistance of appellate counsel claim–the claim fails for a more fundamental reason. At

issue are statements made by a co-defendant to a lay person in a private setting. The

Supreme Court has held that the admission of non-testimonial hearsay, such as this, does

not implicate the Confrontation Clause at all. See Crawford v. Washington, 541 U.S. 36,

61-62 (2004); Davis v. Washington, 547 U.S. 813, 823-26 (2006). Holloway’s statements

to Payne were certainly nontestimonial, and so under current law, the admission of his

statements did not implicate Petitioner’s confrontation rights. 

In reviewing an ineffective assistance of counsel claim, to determine whether a

defendant has been prejudiced by his counsel’s conduct, as opposed to whether his

performance was deficient, a reviewing court looks to the current state of the law. Lockhart

v. Fretwell, 506 U.S. 364, 373 (1993). Therefore, even assuming appellate counsel had a

viable claim under then-existing law, Petitioner was not prejudiced by his counsel’s failure

to raise this claim because his rights under the Confrontation Clause were not violated by

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the admission of this nontestimonial hearsay. 

5.

Petitioner next argues that the prosecutor presented the perjured testimony of Carol

Payne at trial. He asserts that Payne testified that she overheard a discussion between

Petitioner and Smith regarding a newspaper article detailing evidence found near the

bodies and at Petitioner’s apartment. Petitioner references testimony that Payne claimed

to hear Smith talk about a shell box found in the garbage disposal. Petitioner argues that

this testimony was indisputably false because the details of the investigation had not been

available to the newspaper at the time of the conversation.

The deliberate deception of a court and jurors by the presentation of known and

false evidence is incompatible with the rudimentary demands of justice. Giglio v. United

States, 405 U.S. 150, 153 (1972). There is also a denial of due process when the

prosecutor allows false evidence or testimony to go uncorrected. Napue v. Illinois, 360 U.S.

264, 269 (1959) (internal citations omitted). To prevail on a claim that a conviction was

obtained by evidence that the government knew or should have known to be false, a

defendant must show that the statements were actually false, that the statements were

material, and that the prosecutor knew they were false. Coe v. Bell, 161 F.3d 320, 343 (6th

Cir. 1998).

The state trial court concluded that the record did not support Petitioner’s claim. Dkt

47-11, at 10-18. The court summarized Payne’s trial testimony, and found as false

Petitioner’s allegation that Payne testified that Smith read aloud the details of the

investigation from the newspaper article. Id., at 17-18. The Court found that Payne merely

indicated that the newspaper article prompted Smith’s statements about details of the crime

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and the evidence discovered within his own knowledge. Id. Petitioner has not shown by

clear and convincing evidence that this factual determination by the trial court is incorrect.

§ 2254(e)(1). Because the claim is without a factual basis, appellate counsel did not

perform deficiently by failing to raise it. 

6. 

Petitioner next argues that the trial court erroneously allowed admission of evidence

of Petitioner’s poverty and unemployment. Again, the trial court examined the record and

determined that the alleged error amounted to “four questions during a twenty-four day

trial.” Dkt. 47-11, p. 25. The court went on to note that at the time of Petitioner’s trial,

Michigan law had yet to hold that such evidence was inadmissible. The court found that the

seminal case regarding such evidence was decided a year after trial. See People v.

Johnson, 393 Mich. 488, 496 (1975). The trial court held that in the unique circumstances

of Petitioner’s case, where the motive for the crime was a financial one, the evidence of

Petitioner’s financial situation was admissible. Dkt. 47-11, at 27-28. Petitioner asserts that

the trial court is wrong about Michigan law, and that his claim was viable even under thenexisting law. 

This Court, however, will not second-guess the state trial court’s assessment of state

evidentiary law. “[S]econd guessing evidentiary rulings is not our job . . . Federal habeas

courts do not review state-court rulings on state-law questions.” Burger v. Woods, 515 F.

App’x 507, 509 (6th Cir. 2013) (citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)).

Petitioner’s appellate counsel was not ineffective for failing to raise this meritless issue of

state evidentiary law.

7.

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Petitioner next asserts that the trial court erred in allowing admission of evidence

that he remained silent when he was arrested. It is a violation of the Due Process clause

of the Fourteenth Amendment for the prosecution to use a defendant’s post-arrest silence

to impeach exculpatory testimony given by the defendant at trial. Doyle v. Ohio, 426 U.S.

610, 619 (1976); Griffin v. California, 380 U.S. 609, 615 (1965). “[T]he Doyle rule has no

application unless the defendant has remained silent and could be considered to have done

so in reliance on the implied assurances of the Miranda warnings.” United States v.

Crowder, 719 F.2d 166, 172 (6th Cir. 1983) (en banc).

According to the trial testimony of Jacqueline Wesley, Petitioner and Wesley were

in an apartment when the police knocked on the door. Petitioner saw the police through a

hole in the door, and he told Wesley that Byron must have “snitched.” He then threatened

her with a pistol, stating “bitch, if you say one word . . . I’ll kill you.” Petitioner hid the pistol

in a pillow. The police broke into the apartment and asked about the gun because Petitioner

had an empty holster tucked in waistband, and Petitioner did not respond. Petitioner made

statements to Wesley on the way to the police station, telling her not to say anything and

denying that he killed the boys. Dkt. 47-11, at 31-34; Dkt. 54-1, page ID 2131-2133.

The vast majority of Petitioner’s claim centers around the admission of his

statements to Wesley, not to the police. Doyle is not implicated at all by Petitioner’s

statements to another civilian. The only relevant portion of the record is the testimony that

Petitioner did not respond to the officer when asked about the gun. This testimony was

inconsequential because the question concerned Petitioner’s empty holster. It was not a

reference to the murder weapon, and the parties stipulated that the gun found in the

apartment with Petitioner was not the murder weapon. Dkt. 47-11, p. 36. Neither the

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question nor the failure to respond had anything to do with the charged offenses.

Furthermore, Petitioner testified at trial that he told the police that he did not have

anything to do with the crime. Dkt. 47-11, p. 35. Admission of his statements or lack of

statements, and any related argument, was therefore proper. See Anderson v. Charles,

447 U.S. 404, 408 (1980). This claim was not clearly stronger than those raised by

appellate counsel.

8.

Petitioner next asserts that his rights under the Fourth Amendment were denied

when the police committed perjury to obtain a search warrant of his apartment under

Franks v. Delaware, 438 U.S. 154 (1978), and other Fourth Amendment cases decided by

the Supreme Court after his direct appeal. Petitioner’s trial counsel raised a Fourth

Amendment challenge to the search, and the court held a four-day evidentiary hearing on

the claim and denied relief. Dkt. 47-11, p. 4. Petitioner’s appellate counsel then raised the

challenge again on direct appeal based on existing precedent, and the Michigan Court of

Appeals rejected the claim. Gilmore, 73 Mich. App. at 472.

Franks was decided after Petitioner’s conviction because final. Petitioner asserts that

Franks can be applied retroactively. Even if this assertion were accepted, it does not speak

to the deficiency prong, which–unlike Fretwell–asks a reviewing court to look at counsel’s

conduct at the time he acted. Strickland, 466 U.S. at 690. Appellate counsel did not perform

deficiently by failing to raise the Fourth Amendment claim on a basis not yet available to

him. 

9.

Finally, Petitioner asserts that the trial court erroneously instructed the jury regarding

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Petitioner’s alibi defense, the law on aiding and abetting, and the elements of felony-murder

as they existed in 1974. Petitioner fails to demonstrate that the jury instructions were

erroneous. The state trial court held that under Michigan law the challenged instructions

were correct. ECF 47-11, at 36-41. It is not the province of a federal habeas court to

re-examine state-law determinations on state-law questions. Bradshaw v. Richey, 546 U.S.

74, 76 (2005). The decision of the state courts on a state-law issue is binding on a federal

court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983); Stumpf v. Robinson, 722 F.3d

739, 746 n.6 (6th Cir. 2013) (reiterating “‘that a state court’s interpretation of state law,

including one announced on direct appeal of the challenged conviction, binds a federal

court sitting in habeas corpus’”) (quoting Bradshaw, 546 U.S. at 76). Because the

instructions were correct under state law, Petitioner cannot demonstrate that his appellate

counsel performed deficiently by failing to challenge them on direct appeal. 

In sum, Petitioner fails to show that his appellate counsel’s performance fell outside

the wide range of professionally competent assistance by omitting the claims that he raised

in his post-conviction motions. Petitioner’s appellate counsel raised multiple claims on

appeal, and though they proved to be without merit, Petitioner has failed to show that any

of the omitted claims were so clearly stronger that counsel rendering constitutionally

ineffective assistance by omitting them.

Perhaps more to the point, on habeas review, “the question ‘is not whether a federal

court believes the state court’s determination’ under the Strickland standard ‘was incorrect

but whether that determination was unreasonable — a substantially higher threshold.’”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S.

465, 473 (2007)). “The pivotal question is whether the state court’s application of the

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Strickland standard was unreasonable. This is different from asking whether defense

counsel’s performance fell below Strickland’s standard.” Harrington, 562 U.S. at 101.

Indeed, “because the Strickland standard is a general standard, a state court has even

more latitude to reasonably determine that a defendant has not satisfied that standard.”

Knowles, 556 U.S. at 123. Petitioner has not demonstrated that the state trial court’s merits

adjudication of his ineffective assistance of counsel claim was unreasonable under this

deferential standard. He has therefore failed to demonstrate entitlement to relief under §

2254(d).

B. Actual Innocence

Petitioner’s second claim asserts that he is actually innocent. To the extent Petitioner

raises this claim to excuse any procedural default of his first claim, the claim is moot

because the Court has found that claim to be without merit. To the extent that Petitioner

asserts this claim as a substantive claim for relief, it is not cognizable. 

An actual innocence claim does not constitute a constitutional claim in itself. See

Herrera v. Collins, 506 U.S. 390, 404-05 (1993), cited in Schlup v. Delo, 513 U.S. 298, 314

(1995). The Sixth Circuit has interpreted Herrera v. Collins to hold that federal courts must

not make independent determinations of guilt or innocence in habeas cases. See Tyler v.

Mitchell, 416 F.3d 500, 505 (6th Cir. 2005). The function of a federal court reviewing a

habeas corpus petition is to ensure that the petitioner is not imprisoned in violation of the

constitution, not to correct errors of fact. Herrera, 506 U.S. at 400; Wright v. Stegall, 247

F. App’x 709, 711 (6th Cir. 2007) (“Since the Supreme Court has declined to recognize a

freestanding innocence claim in habeas corpus, outside the death-penalty context, this

court finds that [Petitioner] is not entitled to relief under available Supreme Court

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precedent.”); Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007); Sitto v. Lafler, 279 F.

App’x 381, 381-82 (6th Cir. 2008) (affirming denial of habeas relief on similar claim).

Nevertheless, even if Petitioner’s actual innocence claim were cognizable, as the

Court explained in its order granting Respondent’s motion for summary judgment, the claim

is without merit. “[A] petitioner does not meet the threshold requirement [for proving his

actual innocence] unless he persuades the district court that, in light of the new evidence,

no juror acting reasonably, would have voted to find him guilty beyond a reasonable doubt.”

Schlup, 513 U.S. at 329. To satisfy the standard, a petitioner must present “‘new reliable

evidence.’” House v. Bell, 547 U.S. 518, 537 (2006). Based on all the evidence, both old

and new, “the court must make ‘a probabilistic determination about what reasonable,

properly instructed jurors would do.’” Id. at 538 (citation omitted). “The court’s function is

not to make an independent factual determination about what likely occurred, but rather to

assess the likely impact of the evidence on reasonable jurors.” Id.

Petitioner has not met this exacting standard. The prosecution’s case was built on

the testimony of several witnesses who testified seeing Petitioner and his two codefendants come and go from Petitioner’s apartment with the victims over the course of a

weekend. One witness heard Petitioner tell the boys that they were going home when the

three defendants left in her car with them, and the defendants then returned without the

boys. Petitioner made incriminating statements after the crime, threatening Wesley to stay

silent, and indicating that one of his co-defendants must have snitched. 

The bodies were found in a field, and cartridges were found in Petitioner’s garbage

that matched the casings found near the bodies. A button from one victim and fingerprints

from both victims were found in Petitioner’s apartment. Petitioner’s two co-defendants,

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Smith and Holloway, were identified near a dummy ransom drop, and Holloway’s voice was

identified as the man calling with the ransom demands. Holloway in particular made very

incriminating statements after the crime.

The defense theory at trial was that Braceful–who was murdered with the same

weapon used to kill the boys–was responsible for the crime. Petitioner presented several

witnesses who testified that they were with Petitioner during the weekend in question and

that Petitioner’s two co-defendants were not at his apartment with the boys. Petitioner’s

sister testified that she was at Petitioner’s apartment when Braceful and an unidentified

man came over with the boys. Petitioner testified to the same account, asserting that is was

Braceful and an unidentified man who came over to his apartment with the victims–not his

two co-defendants.

Petitioner’s new evidence of innocence consists of an affidavit from Dennis M. Elliot.

Elliott claims that he was the unknown man who came to Petitioner’s apartment with

Braceful and the victims. He states that two other individuals involved in the crime, Larry

Lester and “Star,” remained in the car. The new proffer also indicates that Braceful had a

gun, took two practice shots outside the apartment, and then threw the shells away in

Petitioner’s garbage. Elliott claims that after the murders Larry Lester warned him to stay

quiet or he would end up like Braceful. 

Petitioner’s new evidence is helpful in that it is corroborative of the trial defense that

Braceful brought the boys to the apartment, and it gives an innocent account for the

cartridges found in Petitioner’s apartment. Petitioner’s new evidence falls far short,

however, of establishing that “no juror acting reasonably, would have voted to find him

guilty beyond a reasonable doubt.” 

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First, Elliott is an inmate serving a life sentence for murder. Long-delayed

statements such as his are viewed with extreme suspicion. See Milton v. Secretary, Dep’t

of Corr., 347 F. App’x 528, 531-32 (11th Cir. 2009) (affidavits from fellow inmates and

family members created after trial are not sufficiently reliable evidence to support a claim

of actual innocence); see also Herrera, 506 U.S. at 423 (“It seems that, when a prisoner’s

life is at stake, he often can find someone new to vouch for him.”). 

Next, the new evidence does not substantially change the evidentiary profile of the

case. The trial would still have amounted to a credibility contest between the prosecution

witnesses, who identified Petitioner and his two co-defendants as being the one with the

victims during the relevant time-frame, versus Petitioner and his witnesses who identified

Braceful as being with the victims. The addition of one witness to Petitioner’s side of the

ledger would not compel every reasonable juror to acquit. 

But more pointedly, the new evidence suggesting that Braceful and maybe Lester

were the perpetrators fails to account for the strong evidence implicating Smith and

Holloway. Setting aside Holloway’s damning statements, these two were seen at the

dummy ransom drop, and Holloway was identified as the caller making the ransom

demands. The strong evidence that Holloway and Smith were involved in the abductionmurders very strongly corroborates the prosecution witnesses who testified that Petitioner,

Holloway, and Smith were with the boys at the apartment as opposed to it being Braceful

and another man who had the boys. Neither Petitioner’s trial witnesses nor the new

evidence account for Holloway and Smith. Petitioner has not demonstrated that no juror

acting reasonably, would have voted to find him guilty beyond a reasonable doubt in light

of his new evidence. Therefore, even if this claim were cognizable, the Court would find it

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to be without merit.

The petition will therefore be denied.

IV. Certificate of Appealability

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the

Rules Governing Section 2254 Proceedings, which was amended as of December 1, 2009,

requires that a district court must “issue or deny a certificate of appealability when it enters

a final order adverse to the applicant. . . . If the court issues a certificate, the court must

state the specific issue or issues that satisfy the showing required by 28 U.S.C. §

2253(c)(2).” Rule 11, Rules Governing Section 2254 Proceedings. 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). Courts must either issue a certificate of

appealability indicating which issues satisfy the required showing or provide reasons why

such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. Aat At 22(b); In re

Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). 

To receive a certificate of appealability, “a petitioner must show that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal

quotes and citations omitted). Here, jurists of reason would not debate the Court’s

conclusion that Petitioner has not met the standard for a certificate of appealability because

his claims are completely devoid of merit. Therefore, the Court denies a certificate of

appealability.

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The Court will, however, grant permission to appeal in forma pauperis because any

appeal of this decision could be taken in good faith. 28 U.S.C. § 1915(a)(3). 

V. Conclusion

Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a writ of

habeas corpus, 2) DENIES a certificate of appealability, and 3) GRANTS permission to

appeal in forma pauperis. 

SO ORDERED.

s/ Nancy G. Edmunds

Honorable Nancy G. Edmunds

Dated:March 30, 2016 United States District Judge

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