UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

DWAYNE HALL,

 

Petitioner, Case Number 1:08-CV-14889

 Honorable Thomas L. Ludington

v.

JOHN PRELESNIK,

Respondent,

________________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING

PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL

Petitioner Dwayne Hall (“Petitioner”), confined at the Richard A. Handlon Correctional

Facility in Ionia, Michigan, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. Petitioner was convicted following a jury trial in the Wayne Circuit Court of first-degree

murder, Mich. Comp. Laws § 750.316(1)(a), felon in possession of a firearm, Mich. Comp. Laws

§ 750.224f, and commission of a felony with a firearm, Mich. Comp. Laws § 750.227b. Petitioner

was sentenced to life in prison for the murder conviction, three-to-twenty years for the felon-inpossession conviction, and a consecutive two years for the felony-firearm conviction. 

Petitioner advances fourteen grounds for relief: (1) insufficient evidence was presented to

sustain the murder conviction; (2) a defense witness was improperly impeached with a prior

conviction; (3) the prosecutor committed misconduct during his rebuttal argument; (4) new evidence

undermines the reliability of Petitioner’s convictions; (5) hearsay evidence was improperly admitted

at trial; (6) the case should have been remanded for another preliminary examination; (7) trial

counsel was ineffective for failing to call alibi witnesses; (8) trial counsel was ineffective for failing

to properly investigate the defense; (9) the admission of hearsay violated Petitioner’s confrontation

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rights; (10) the prosecutor suppressed exculpatory evidence, (11) the prosecutor committed

misconduct; (12) trial counsel was ineffective; (13) appellate counsel was ineffective; and (14)

Petitioner was denied discovery during his state post-conviction proceeding. For the reasons

provided herein, the petition will be denied.

I

The relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct

on habeas review pursuant to 28 U.S.C. § 2254(e)(1) are as follows:

Defendant’s convictions arise from the afternoon shooting death of Curtiss Triplett,

on a street in Ecorse in February 2003. The incident began when defendant fired his gun into

the air. The victim, Triplett, stopped his car and admonished defendant not to play with guns.

According to witnesses, defendant then walked over to the car and shot Triplett. Defendant

was identified as the shooter by Triplett’s girlfriend, who was in the car with Triplett and had

known defendant for many years, and by another man who was standing a block away, but

who also knew defendant. Defendant was also identified as the shooter by another woman,

Leniece Hopkins, who testified at trial that she was a block away from the shooting and

knew defendant. Defendant presented alibi witnesses and testimony that a former police

officer, Derrick Lyons, was the shooter.

People v. Hall, No. 251050, 2004 Mich. App. LEXIS 3614, *1-2 (Mich. Ct. App. Dec. 28, 2004);

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

Following his conviction and sentence, Petitioner filed an appeal of right. Petitioner’s

appointed appellate counsel filed a brief that raised three claims:

I. The evidence presented at trial was insufficient to convict Petitioner of first degree

murder.

II. The trial court abused its discretion in allowing the prosecution to impeach

witness Carey McDaniel by his criminal conviction record.

III. Petitioner is entitled to a new trial because the improper remarks made by the

Prosecutor during rebuttal argument denied him a fair trial and thus constitutes

reversible error.

Petitioner’s counsel also filed a supplemental brief, asserting one additional claim:

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IV. Petitioner should be granted a new trial based upon the newly discovered

evidence of perjured trial testimony.

Petitioner filed his own pro se supplemental brief, raising four more issues:

V. The trial court abused its discretion in the denial of defense counsel objection to

suppress the hearsay statements made by witness Walker to Officer Howard, in

violation of Michigan Rule of Evidence 803(2).

VI. The trial court abused its discretion in denying defense counsel motion for

remand back to the district court for further preliminary examination.

VII. Trial counsel attorney David Cripps provided ineffective assistance of counsel,

in his failure to call Petitioner’s alibi witnesses Ms. Sandra Hall and Ms. Juiley

Mosley, in violation of Petitioner’s Sixth Amendment right to effective assistance

of counsel.

VIII. Trial counsel attorney David Cripps provided ineffective assistance of counsel

in his failure to oversee his own investigation, by his investigation staff, thus denying

the credibility in the testimony of witness Mr. Michael B. Perry, and the

corroborating testimony of Mr. Ricky Scott under Michigan Rule of Evidence

804(B)(3).

The Court of Appeals affirmed Petitioner’s conviction in an unpublished opinion. Hall, 2004

Mich. App. LEXIS 3614. Petitioner then filed an application for leave to appeal in the Michigan

Supreme Court, raising all eight claims that were presented to the Court of Appeals. The Michigan

Supreme Court denied leave to appeal. People v. Hall, 474 Mich. 854, 702 N.W.2d 580 (2005).

Petitioner then filed a motion for relief from judgment in the trial court. This motion raised

five substantive claims:

IX. Petitioner was denied his Sixth Amendment right to confrontation, and his

Fourteenth Amendment right to a fair trial when the trial court allowed the admission

of testimonial out-of-court hearsay statement, and when the trial court permitted the

prosecution to withhold and deny the defense access to those same recorded

statements in violation of discovery.

X. Petitioner was denied his Fourteenth United States Constitutional Amendment to

due process of law and a fair trial when the prosecution suppressed and failed to

disclose potential exculpatory and impeachment evidence.

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XI. Petitioner was denied his 5th and 14th United States Constitutional Amendment

right to due process of law and a fair trial when the prosecution committed several

acts of misconduct.

XII. Petitioner was denied his Sixth Amendment right to effective assistance of trial

counsel as well as his Fourteenth Amendment right to due process of law.

XIII. Petitioner was denied his Sixth Amendment right to effective assistance of

appellate counsel and his Fourteenth Amendment right to due process of law.

The trial court denied the motion in an opinion dated June 14, 2007. Petitioner filed an

application for leave to appeal in the Michigan Court of Appeals, rasing these same claims and a

new claim that the trial court erroneously denied his post-conviction discovery request. The

Michigan Court of Appeals denied leave to appeal. People v. Hall, No. 279046 (Mich. Ct. App.

filed April 3, 2008). Petitioner appealed this decision to the Michigan Supreme Court, but it denied

leave to appeal as well. People v. Hall, 482 Mich. 1031, 769 N.W.2d 191 (2008). 

 Petitioner has now filed the instant petition, raising all fourteen claims that he presented

during his two rounds of appeals in the Michigan courts.

II

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

1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is not entitled to a writ of habeas corpus

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

(1) resulted in a decision that was contrary to, or involved an unreasonable

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

of the United States; or

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

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

28 U.S.C. § 2254(d). 

A decision of a state court is “contrary to” clearly established federal law if the state court

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arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the

state court decides a case differently than the Supreme Court has on a set of materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable

application” occurs when “a state court decision unreasonably applies the law of [the Supreme

Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ

simply because that court concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11.

The Supreme Court has explained that “[a] federal court’s collateral review of a state-court

decision must be consistent with the respect due state courts in our federal system.” Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for

evaluating state-court rulings,’ and ‘demands that state-court decisions be given the benefit of the

doubt.’ ” Renico v. Lett, --- U.S. ---, 130 S.Ct. 1855, 1862, 176 L. Ed. 2d 678 (2010)((quoting Lindh

v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per

curiam)). “[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, --- U.S. ---, 131 S. Ct. 770, 786,178 L.Ed.2d 624 (2011)(citing Yarborough

v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized “that even a strong

case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. (citing

Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d), “a habeas court

must determine what arguments or theories supported or . . . could have supported, the state court’s

decision; and then it must ask whether it is possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court.

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Id. “If this standard is difficult to meet, that is because it was meant to be.” Richter, 131 S. Ct. at

786.

Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal

courts from relitigating claims that have previously been rejected in the state courts, it preserves the

authority for a federal court to grant habeas relief only “in cases where there is no possibility

fairminded jurists could disagree that the state court’s decision conflicts with” the Supreme Court’s

precedents. Id. Indeed, “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.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979)) (Stevens,

J., concurring in judgment)). Therefore, in order to obtain habeas relief in federal court, a state

prisoner is required to show that the state court’s rejection of his claim “was so lacking in

justification that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Richter, 131 S.Ct. at 786-87.

III

A

Petitioner’s first claim asserts that insufficient evidence was presented at his trial to prove

beyond a reasonable doubt that he acted with the premeditation and deliberation necessary to

constitute first-degree premeditated murder under Michigan law. Respondent asserts that the claim

was reasonably rejected on the merits by the Michigan Court of Appeals.

The relevant question on review of a sufficiency-of-the-evidence claim is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

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U.S. at 319 (emphasis in original). This standard “must be applied with explicit reference to the

substantive elements of the criminal offense as defined by state law.” Id. at 324 n.16.

Under Michigan law, the elements of premeditated murder are: (1) the defendant killed the

victim and (2) the killing was “willful, deliberate, and premeditated.” People v. Bowman, 254 Mich.

App. 142, 151, 656 N.W.2d 835 (2002) (quoting Mich. Comp. Laws § 750.316(1)(a)). “To

premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets

of a choice or problem.” People v. Morrin, 31 Mich. App. 301, 329-30, 187 N.W.2d 434 (1971)

(footnotes omitted). Premeditation and deliberation may be inferred from all the circumstances,

including “(1) the prior relationship of the parties; (2) the defendant’s actions before the killing; (3)

the circumstances of the killing itself; and (4) the defendant’s conduct after the homicide.” People

v. Schollaert, 194 Mich. App. 158, 170, 486 N.W.2d 312 (1992).

“A pause between the initial homicidal intent and the ultimate act may, in the appropriate

circumstances, be sufficient for premeditation and deliberation.” People v. Plummer, 229 Mich.

App. 293, 301, 581 N.W.2d 753 (1998) (citing People v. Tilley, 405 Mich. 38, 45, 273 N.W.2d 471

(1979)). “Although there is no specific time requirement, sufficient time must have elapsed to allow

the defendant to take a ‘second look.’ ” Id. at 300 (citing People v. DeLisle, 202 Mich. App. 658,

660, 509 N.W.2d 885 (1993), and People v. Anderson, 209 Mich. App. 527, 537, 531 N.W.2d 780

(1995)).

In this case, the Michigan Court of Appeals rejected Petitioner’s claim as follows:

Defendant first argues that there was insufficient evidence of premeditation

and deliberation to support his conviction of first-degree murder. We disagree.

When reviewing the sufficiency of the evidence in a criminal case, this Court

must view the evidence in a light most favorable to the prosecution to determine

whether a rational trier of fact could have found the essential elements of the crime

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proven beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 515; 489

N.W.2d 748 (1992), amended 441 Mich. 1201 (1992). The standard of review is

deferential, and requires a reviewing court to draw all reasonable inferences and

resolve credibility conflicts in support of the jury’s verdict. People v. Nowack, 462

Mich. 392, 400; 614 N.W.2d 78 (2000).

To establish first-degree murder, the prosecution must prove “that the

defendant intentionally killed the victim and that the act of killing was premeditated

and deliberate.” People v. Kelly, 231 Mich. App. 627, 642; 588 N.W.2d 480 (1998).

“To premeditate is to think about beforehand; to deliberate is to measure and

evaluate the major facets of a choice or problem . . . . Premeditation and deliberation

characterize a thought process undisturbed by hot blood.” People v. Morrin, 31

Mich. App. 301, 329-330; 187 N.W.2d 434 (1971). To show first-degree

premeditated murder, “ ‘some time span between [the] initial homicidal intent and

ultimate action is necessary to establish premeditation and deliberation.’ ” People v.

Tilley, 405 Mich. 38, 45; 273 N.W.2d 471 (1979), quoting People v. Hoffmeister, 394

Mich. 155, 161; 229 N.W.2d 305 (1975). The interval between the initial thought

and ultimate action should be long enough to afford a reasonable person time to take

a “second look.” [People v. Gonzalez, 468 Mich. 636, 641; 664 N.W.2d 159

(2003).]” A sufficient time lapse to provide an opportunity for a ‘second look’ may

be merely seconds, or minutes, or hours, or more, dependent on the totality of the

circumstances surrounding the killing.” People v. Conklin, 118 Mich. App. 90, 93;

324 N.W.2d 537 (1982). But one “cannot instantaneously premeditate a murder.”

People v. Plummer, 229 Mich. App. 293, 305; 581 N.W.2d 753 (1998). “A pause

between the initial homicidal intent and the ultimate act may, in the appropriate

circumstances, be sufficient for premeditation and deliberation.” Id. at 301. There

must be “substantially more reflection on and comprehension of the nature of the act

than the mere amount of thought necessary to form the intent to kill.” Id.

In the present case, although the encounter between defendant and Triplett

was brief, the evidence indicated that defendant left a sidewalk and proceeded toward

Triplett’s car with a gun in his hand and his arm outstretched. The evidence did not

suggest that this was a “heated situation,” such as where a defendant is responding

to a brawl and has no time “to take a second look at the nature of his actions,

‘undisturbed by hot blood.’ ” Id. at 303, 305. Further, Triplett was unarmed, and his

remarks were not so provocative that defendant’s thought process should have been

disturbed “by hot blood.” Id. at 300. This Court has recognized that a “pause” or

“seconds” may be sufficient for premeditation and deliberation. Id. at 301; Conklin,

supra at 93. Under the circumstances, the interval involved in this case, while short,

was nevertheless adequate for defendant to have taken a second look at the nature of

his actions. Viewed in a light most favorable to the prosecution, the evidence was

sufficient to allow the jury to find that the essential elements of premeditation and

deliberation were proven beyond a reasonable doubt.

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Hall, 2004 Mich. App. LEXIS 3614, at *2-5. 

This decision was not contrary to, and it did not involve an unreasonable application of, the

clearly established Supreme Court standard for evaluating sufficiency-of-the-evidence claims. First,

the state appellate court unquestionably applied the correct constitutional test. It stated that it “must

view the evidence in a light most favorable to the prosecution to determine whether a rational trier

of fact could have found the essential elements of the crime proven beyond a reasonable doubt.”

Next, the state court did not unreasonably apply this test to the facts of this case. The element in

question, premeditation and deliberation, has a specific meaning under state law that cannot be

challenged here. Jackson, 443 U.S. at 324 n.16. Under this definition the element can be satisfied

by merely showing that the defendant had sufficient time to take a “second look.” Viewed most

favorably to the prosecution, the evidence demonstrated that Petitioner shot at the victim four times

while the victim had his hands in the air. The lapse of time between the victim’s comment and the

shooting, though fairly brief, allowed a rational fact-finder to determine beyond a reasonable doubt

that Petitioner had sufficient time to take a “second look” before deciding to shoot the victim. More

to the point, the decision by the state appellate court that the element was satisfied was not so

“lacking in justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Richter, 131 S. Ct. at 786-87. Habeas relief

is therefore barred by application of § 2254(d).

B

In addition to offering alibi witnesses at trial, Petitioner also introduced evidence that a

former police officer shot the victim. Defense counsel explained as follows in his opening statement:

And that is what Derrick Lyons - - you’ll hear about - - did in this particular

situation. A police office gone bad, a police officer - - you’ll hear from the witnesses

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in this case - - began using drugs.

A police officer who began paying informants, a police officer, who he

himself, became involved in street activity.

A police officer who had a fight with Curtis Triplett - - the deceased in this

case - - at a restaurant sometime prior to February 18th, ‘02, They had a beef

between each other, as they say on the streets, between Curtis Triplett and Derrick

Lyons.

And Derrick Lyons was on the street - - Salliotte - - on February 18, 2002.

Derrick Lyons was wearing a dark gray, hooded sweater, similar to the description

one of the witnesses had given already, had continued that dispute, and walked up

and shot Curtis Triplett.

That’s what you’ll hear from the witnesses in this case.

You’ll hear from a couple of eye witnesses that the defense will be presenting

- - Mr. Carey McDaniels, and Mr. Ronald Hall - - who would testify that they were

up there, that they saw the shooting, that they saw who did the shooting, that they

saw it wasn’t Dwayne Hall who did the shooting, but in fact it was Mr. Derrick

Lyons who did the shooting in this case. 

And you’ll hear that right from this very witness stand today.

Trial Tr. Vol. III, 12-13, Aug. 20, 2003. A separate record was later created of Carey McDaniel’s

testimony where he acknowledged having been convicted of shooting Derrick Lyons. Mr. McDaniel

explained the incident:

THE COURT: What’s your name, sir?

. . . 

WITNESS MCDANIEL: Carey Anthony McDaniel

THE COURT: Okay, Mr. McDaniel, how old are you?

WITNESS MCDANIEL: Twenty-three.

THE COURT: Mr. Mc[D]aniel, were you convicted in 1985 - - looks like November

of 1985 - - so you probably - - if you were convicted would have been 1986, is that

correct?

WITNESS MCDANIEL: I went to the penitentiary in 1986, yeah.

THE COURT: I can’t hear you.

WITNESS MCDANIEL: I went to the penitentiary in 1986.

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THE COURT: In 1986?

WITNESS MCDANIEL: Yes.

THE COURT: Is that a, “yes?”

WITNESS MCDANIEL: Yes, sir.

THE COURT: And what were you sent to the penitentiary for?

WITNESS MCDANIEL: To [Do] Great Bodily Harm Less than Murder.

THE COURT: Okay. And who was the victim - - strike that. Did you shoot

somebody?

WITNESS MCDANIEL: Yes, sir.

THE COURT: Who did you shoot?

WITNESS MCDANIEL: Derrick Lyons.

Trial Tr. Vol. III, 101-02, Aug. 20, 2003. Petitioner’s second claim is that the trial court erred in

allowing the prosecutor to admit evidence that McDaniel was convicted and sentenced for shooting

Lyons. The prosecution offered evidence of McDaniel’s conviction to show that he was biased

against Lyons, and therefore had a motive to support Petitioner’s theory of defense. Petitioner

asserts that the evidence was admitted in violation of Michigan Rule of Evidence 609 because

McDaniel’s conviction did not contain an element of theft or dishonesty. Respondent asserts that

the claim does not state an issue cognizable under § 2254.

The credibility of a witness may be attacked by any party. Mich. R. Evid. 607. McDaniel

likely was biased against Lyons and the fact that the reason for his bias may have also resulted in

his conviction implicating Michigan Rule of Evidence 609 does not alter habeas review. It is “not

the province of a federal habeas court to reexamine state-court determinations on state-court

questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A federal court is limited in federal

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habeas review to deciding whether a state court conviction violates the Constitution, laws, or treaties

of the United States. Id. Thus, errors in the application of state law, especially rulings regarding the

admissibility of evidence, are usually not questioned by a federal habeas court. Seymour v. Walker,

224 F. 3d 542, 552 (6th Cir. 2000). Petitioner has failed to identify how his federal constitutional

rights were violated by the admission of McDaniel’s prior conviction. There is nothing

fundamentally unfair about impeaching a witness with evidence that he had a bias in favor of a

party. Petitioner’s claim that the evidence was admitted in violation of a state evidentiary rule

cannot form a basis for granting habeas relief. 

C

Petitioner alleges in his third claim that the prosecutor committed misconduct during his

rebuttal closing argument by denigrating defense counsel and appealing to the civic duty of the jury.

Respondent contends that the civic-duty argument claim is procedurally defaulted because

Petitioner did not contemporaneously object to it, and he argues that the denigrating-the-defense

claim was reasonably adjudicated by the Michigan Court of Appeals.

1

With respect to the portion of the claim that Respondent contends is procedurally defaulted,

federal habeas relief may be precluded on claims that a petitioner has not presented to the state

courts in accordance with the state’s procedural rules. Wainwright v. Sykes, 433 U.S. 72,

85-87(1977). Such a procedural default occurs when a petitioner fails to comply with a state

procedural rule, the rule is relied upon by the state courts, and the procedural rule is “adequate and

independent.” White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2005). A procedural default may be

excused where the petitioner demonstrates cause and prejudice for his failure to comply with the

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state procedural rule, or when a petitioner establishes that failing to review the claim would result

in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Combs

v. Coyle, 205 F.3d 269, 274 (6th Cir. 2000). To demonstrate that a “fundamental miscarriage of

justice” would occur absent review of a petitioner’s claim, the petitioner must assert a credible claim

of actual innocence that is supported by reliable evidence that was not presented at trial. Schlup v.

Delo, 513 U.S. 298, 315-16 (1995).

In reviewing the unobjected-to portion of Petitioner’s prosecutorial misconduct claim, the

Michigan Court of Appeals limited itself to determining whether “plain error” occurred: “With

regard to defendant’s other allegations of prosecutorial misconduct, to which defendant did not

object at trial, defendant has not shown a plain error affecting his substantial rights.” Hall, 2004

Mich. App. LEXIS 3614 , at *8 (citing People v. Carines, 460 Mich. 750, 763; 597 N.W.2d 130

(1999)).

It is well-established that the Michigan Court of Appeals’s application of plain-error review

constitutes the invocation of an independent and adequate procedural rule that bars federal review

of the merits of his claim. Fleming v. Metrish, 556 F.3d 520, 524 (6th Cir. 2009). Therefore,

Petitioner is entitled to review of his claims on the merits only if he can demonstrate “cause and

prejudice,” or that he is actually innocent. Petitioner attempts to establish cause to excuse his default

by arguing that his trial counsel was ineffective for failing to object to the prosecutor’s comment.

 Petitioner’s claim is meritless for the reasons provided in the following section.

2 

The United States Supreme Court stated that prosecutors must “refrain from improper

methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88

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(1935). To prevail on a claim of prosecutorial misconduct, a habeas petitioner must demonstrate that

the prosecutor’s remarks “so infected the trial with unfairness as to make the resulting conviction

a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

The United States Court of Appeals for the Sixth Circuit adopted a two-part test for

determining whether prosecutorial misconduct violates a defendant’s due process rights. See Macias

v. Makowski, 291 F.3d 447, 452 (6th Cir. 2002) (citing United States v. Carter, 236 F.3d 777, 783

(6th Cir. 2001); Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000)). First, the court must

determine whether the challenged statements were indeed improper. Id. at 452. Upon a finding of

impropriety, the court must decide whether the statements were flagrant. Id. Flagrancy is

determined by an examination of four factors: (1) whether the statements tended to mislead the jury

or prejudice the accused; (2) whether the statements were isolated or among a series of improper

statements; (3) whether the statements were deliberately or accidentally before the jury; and (4) the

total strength of the evidence against the accused. Id.; see also Slagle v. Bagley, 457 F.3d 501,

515-16 (6th Cir. 2006); Boyle, 201 F.3d at 717 (citing United States v. Francis, 170 F.3d 546,

549-50 (6th Cir. 1999)). “[T]o constitute the denial of a fair trial, prosecutorial misconduct must

be ‘so pronounced and persistent that it permeates the entire atmosphere of the trial,’ or ‘so gross

as probably to prejudice the defendant.’ ” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997)

(citations omitted).

Petitioner first claims that the prosecutor improperly denigrated defense counsel during his

rebuttal closing argument. During closing argument the prosecutor stated that the term “red herring”

came from the old English practice of sharpening the tracking skills of hunting dogs by using

malodorous fish in an effort to distract them. The prosecutor stated that the defense witnesses were

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not credible, and he described them as being used like red herrings intended to distract the jury–the

hunting dogs in the prosecutor’s analogy–from discovering the truth. Trial Tr. Vol. IV, 146-48,

Aug. 21, 2003. The Michigan Court of Appeals found that “the prosecutor’s argument, viewed in

relation to the evidence and the defense argument, was not so prejudicial that it denied defendant

a fair and impartial trial.” Hall, 2004 Mich. App. LEXIS 3614, at *7.

 Prosecutors may highlight inconsistencies or inadequacies in the defense, Bates v. Bell, 402

F.3d 635, 646 (6th Cir. 2005), point out the lack of evidence supporting the defense theory, United

States v. Forrest, 402 F.3d 678, 686 (6th Cir. 2005), and argue from the facts that a defense witness,

including a testifying defendant, is not worthy of belief, Portuondo v. Agard, 529 U.S. 61, 69

(2000). Moreover, a prosecutor’s description of a defense argument as a red herring, a smoke

screen, or a distraction–a common tactic–is not per se improper. See United States v. Bernard, 299

F.3d 467, 487-88 (5th Cir. 2002); United States v. Rivera, 971 F.2d 876, 883 (2d Cir. 1992).

Accordingly, the state court decision rejecting this claim was not unreasonable. 

Petitioner next argues that the prosecutor improperly appealed to the civic duty of the jury

by referring to their obligation to render justice:

It is your job to go back and weigh those testimonies. Look at all the

witnesses individually and decide who has a motive to lie, who doesn’t; who do you

believe - based on what they said; how it fits together with all the other evidence?

That’s your job.

That’s justice when you do that. When you render your verdict in this case,

you’ll be rendering justice.

When you render your verdict, your verdict will be guilty as charged, because

that’s what justice requires, because the competent evidence says one person, this

man, killed Curtis Triplett.

Trial Tr. Vol. IV, 149, Aug. 21, 2003. 

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 A prosecutor may not make remarks to incite the jury’s emotions that are irrelevant to the

facts. Viereck v. United States, 318 U.S. 236, 247-48 (1943). However, “[u]nless calculated to incite

the passions and prejudices of the jurors, appeals to the jury to act as the community conscience are

not per se impermissible.” United States v. Emuegbunam, 268 F.3d 377, 406 (6th Cir. 2001) (quoting

United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991)). “[A] prosecutor illicitly incites the

passions and prejudices of the jury when he calls on the jury’s emotions and fears - rather than the

evidence - to decide the case.” Johnson v. Bell, 525 F.3d 466, 484 (6th Cir. 2008). The Sixth Circuit

has stated that the type of appeal to the jury that is improper is one where the prosecutor urges the

jury to send a message to other potential criminals in the community by convicting the defendant.

United States v. Ghazaleh, 58 F.3d 240, 246 (6th Cir. 1995) (citing United States v. Johnson, 968

F.2d 768 (8th Cir. 1992); United States v. Solivan, 937 F.2d 1146 (6th Cir. 1991)).

The argument quoted above was not designed to call upon the jury’s sense of civic duty

rather than the evidence. The prosecutor prefaced the remark by reminding the jury that it was their

job alone to determine the credibility of the witnesses. He then equated that job–deliberating and

rendering a verdict–as rendering justice. The prosecutor then concluded by stating that “because

the competent evidence says one person, [Petitioner], killed Curtis Triplett,” justice required a guilty

verdict. This concluding argument was based solely on the prosecutor’s view of the evidence and

did not call on the jury to convict Petitioner to send a message to the community. It was not

improper and does not provide a basis for granting habeas relief.

D 

Petitioner’s fourth claim asserts that he is entitled to a new trial because one of the

prosecution witnesses who identified him as the shooter executed an affidavit after trial that her

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testimony was false. Respondent asserts that the claim amounts to a free-standing claim of actual

innocense that is not cognizable on habeas review.

The Michigan Court of Appeals rejected the claim as follows:

Defendant argues that he is entitled to a new trial because Leniece Hopkins,

one of the prosecution witnesses who identified him as the shooter, subsequently

admitted in an affidavit that she lied at trial and was not even present at the scene.

Defendant argues that this newly discovered evidence warrants a new trial.

Generally, the issue of newly discovered evidence comes before this Court

in the context of a trial court’s ruling granting or denying a defendant’s motion for

a new trial. In that situation, “this Court reviews a trial court’s decision to grant or

deny a motion for new trial for an abuse of discretion . . . . A trial court’s factual

findings are reviewed for clear error.” People v. Cress, 468 Mich. 678, 691; 664

N.W.2d 174 (2003). Here, defendant first raised this issue in a motion to remand,

which this Court denied for failure to persuade the Court of the need for remand at

that time.[] Where, as here, the trial court has not had an opportunity to decide the

issue initially or to determine whether an evidentiary hearing is necessary under

Michigan Court Rule 7.211(C)(1), this Court examines the proffered evidence under

the standard for granting a new trial to determine whether a remand is necessary. 

For a new trial to be granted on the basis of newly discovered evidence, a

defendant must show that: (1) “the evidence itself, not merely its materiality, was

newly discovered”; (2) “the newly discovered evidence was not cumulative”; (3)

“the party could not, using reasonable diligence, have discovered and produced the

evidence at trial”; and (4) the new evidence makes a different result probable on

retrial. [Cress, supra at 692 (citations omitted).] “Michigan courts have expressed

great reluctance to grant new trials on the basis of recanting testimony.” People v.

Canter, 197 Mich. App. 550, 560; 496 N.W.2d 336 (1992) (citations omitted).

Upon review of the complete record and arguments advanced by the parties,

we conclude that the fourth part of the test for granting a new trial based on newly

discovered evidence cannot be met because the new evidence clearly would not

make a different result probable on retrial. The victim’s girlfriend was in the

passenger seat of the victim’s car when the events of this case unfolded. She had

known defendant for several years and positively identified him as the person who

walked over to the car and shot the victim. Another witness, who also saw the

shooting, albeit from a longer distance, testified that he was certain that it was

defendant who shot the victim. This witness had known defendant for a long time

and also recognized one of the other two men with defendant. Accordingly we deny

defendant’s request for a new trial on the basis of newly discovered evidence.

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Hall, 2004 Mich. App. LEXIS 3614, at *9-10.

The claim cannot form the basis for granting habeas relief. “Claims of actual innocence

based on newly discovered evidence have never been held to state a ground for federal habeas relief

absent an independent constitutional violation occurring in the underlying state criminal

proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993). Petitioner’s claim challenging the Court

of Appeal’s failure to remand the case for a new trial on the basis of newly discovered evidence is

not cognizable on federal habeas review. Monroe v. Smith, 197 F. Supp. 2d 753, 763 (E.D. Mich.

2001) (“A claim that a habeas petitioner is entitled to relief based upon the failure of a state trial

judge to grant him a trial on the basis of newly discovered evidence is not cognizable in a habeas

proceeding.”). Claims that a state judge failed to comply with state law requirements are matters

of state law and are not cognizable on habeas review. Spalla v. Foltz, 788 F.2d 400, 405 (6th Cir.

1986). As one court explained:

The criteria for a trial court in granting or denying a new trial are matters of state

law. As such, an incorrect application would not be grounds for federal habeas

relief, unless the alleged error constituted “a fundamental defect which inherently

results in a complete miscarriage of justice.”

Ward v. Wolff, 499 F. Supp. 1129, 1131 (D. Nev. 1980) (quoting Hill v. United States, 368 U.S. 424,

428 (1962)). The Michigan Court of Appeals reviewed the entire record and the affidavit of the

recanting witness. The court found that the new evidence was insufficient to make a different result

at trial probable. The ruling did not result in a miscarriage of justice. Petitioner is not entitled to

habeas relief based on this claim.

E

Petitioner’s fifth claim asserts that the trial court erred in allowing the admission of a hearsay

statement by the victim’s girlfriend. A police officer testified at trial that he spoke with the victim’s

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girlfriend at the hospital immediately after the shooting and that she said “Dwayne shot my

boyfriend.” Over defense counsel’s hearsay objection, the trial court allowed admission of the

testimony under the excited utterance exception. The Michigan Court of Appeals found that the

evidence was properly admitted. Respondent argues that the claim does not state a cognizable

ground for habeas relief. 

As stated above, a federal court is limited in federal habeas review to deciding whether a

state court conviction violates the Constitution, laws, or treaties of the United States. Estelle, , 502

U.S. at 67-68. What is or is not hearsay evidence in a state court trial is governed by state law. See

Johnson v. Renico, 314 F. Supp. 2d 700, 705 (E.D. Mich. 2004)(internal citations omitted).

Petitioner’s claim that the trial court improperly admitted the victim’s girlfriend’s statement to the

officer under the excited utterance exception to the hearsay rule presents a state evidentiary law

issue which is not cognizable on federal habeas review. See Smith v. Jones, 326 F. App’x 324, 330

(6th Cir. 2009); Williams v. White, 183 F. Supp. 2d 969, 975-77 (E.D. Mich. 2002).

Nor can Petitioner claim that the admission of the statement to the officer violated his Sixth

Amendment right to confrontation. The victim’s girlfriend testified at trial and was subjected to

cross-examination. The protections afforded by the Confrontation Clause are fulfilled where a

hearsay declarant is present at trial and subject to cross-examination. See United States v. Owens,

484 U.S. 554, 560 (1988). In this situation, “the traditional protections of the oath,

cross-examination, and opportunity for the jury to observe the witness’ demeanor satisfy the

constitutional requirements.” Id. at 560 (internal citations omitted). Because the victim’s girlfriend

testified at Petitioner’s trial and was subject to cross-examination, the admission of her hearsay

statement to the officer as an excited utterance did not violate Petitioner’s Sixth Amendment right

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to confrontation. See Shannon v. Berghuis, 617 F. Supp. 2d 596, 604 (W.D. Mich. 2008).

F

Petitioner’s fifth claim asserts that the trial court erred in failing to remand the case to the

state district court for the purpose of reopening the preliminary examination. Respondent argues

that this claim is also not cognizable. After the case was bound-over to the trial court, the prosecutor

disclosed to defense counsel an investigative subpoena hearing transcript of a witness whose

statements varied from his preliminary examination testimony. Defense counsel argued that had the

information been available at the preliminary examination, there would have been insufficient

evidence presented to bind Petitioner over for trial on the charge of first-degree murder. The trial

court denied the motion to remand, and the Michigan Court of Appeals agreed:

Defendant argues that the trial court abused its discretion by denying his

pretrial motion to remand the case to the district court to enable him to use the

transcript of an investigative subpoena hearing to show discrepancies in the

testimony of the prosecution’s witnesses.

The trial court correctly determined that a remand was unnecessary. Even if

defendant had shown inconsistencies in the accounts of the prosecution’s witnesses,

those conflicts would not have been a basis for the magistrate to refuse to bind

defendant over for trial. Where there is evidence that a felony has been committed

and probable cause to believe that the defendant was the perpetrator, the defendant

must be bound over for trial, even if the evidence conflicts or raises a reasonable

doubt. People v. Selwa, 214 Mich. App. 451, 456-457; 543 N.W.2d 321 (1995).

Hall, 2004 Mich. App. LEXIS 3614, at *12-13.

The purpose of a preliminary examination is to determine whether probable cause exists to

justify continued detention of a person charged by complaint or information. See Gerstein v. Pugh,

420 U.S. 103, 118 (1975). The abridgement of that right may undermine the validity of continued

pretrial detention, but not the ensuing conviction. Under Michigan law, any error in the sufficiency

of the proofs at preliminary examination is considered harmless if there is sufficient evidence to

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convict at trial. See People v. Hall, 435 Mich. 599, 602-03 (1990). The same rule applies in federal

court. See United States v. Mechanik, 475 U.S. 66, 73 (1986). Indeed, there is no independent

federal constitutional right to a preliminary examination. Dillard v. Bomar, 342 F.2d 789, 790 (6th

Cir. 1965). Petitioner’s claim that insufficient evidence would have been presented at the

preliminary examination to bind him over for trial raises only a matter of state law and procedure

that cannot form a basis for federal habeas relief. Pulley v. Harris, 465 U.S. 37, 41 (1984); Scott v.

Bock, 241 F. Supp. 2d 780, 793 (E.D. Mich. 2003). Accordingly, this claim does not present a

cognizable question in this action.

G

Petitioner’s seventh and eighth claims assert the his trial attorney provided ineffective

assistance of counsel. Petitioner claims that his counsel failed to call two alibi witnesses and that

he failed to adequately investigate Petitioner’s defense that Derrick Lyons shot the victim. These

two claims were presented to the Michigan Court of Appeals in Petitioner’s pro se supplemental

brief. The Court of Appeals limited its review of the claims to the existing record, and denied them

on the merits:

Defendant claims that he was denied the effective assistance of counsel.

Because defendant did not move for an evidentiary hearing pursuant to People v.

Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973), this Court’s review of this issue

is limited to errors apparent on the record. People v. Williams, 223 Mich. App. 409,

414; 566 N.W.2d 649 (1997).

Defendant has submitted affidavits from three individuals indicating that they

would have provided testimony favorable to the defense. Those affidavits were not

presented below and, therefore, are not part of the existing record. MICH. CT. R.

7.210(A)(1); People v. Wiley, 112 Mich. App. 344, 346; 315 N.W.2d 540 (1981).

Accordingly, we may not consider them for purposes of determining that reversal is

warranted because trial counsel was ineffective. Even if considered in the limited

context of determining whether defendant has made an adequate showing to support

his alternative request for a remand for an evidentiary hearing the affidavits are not

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persuasive that a remand is required. MCR 7.211(C)(1)(a)(ii). Decisions as to what

evidence to present and whether to call or question witnesses are presumed to be

matters of trial strategy, People v. Dixon, 263 Mich. App. 393, 398; 688 N.W.2d 308

(2004), and the failure to call witnesses or present other evidence can constitute

ineffective assistance of counsel only when it deprives the defendant of a substantial

defense. Id.

One of the affidavits is from an individual, Ricky Scott, who was listed as a

witness by both the prosecution and the defense. Scott avers that he witnessed the

shooting and saw the perpetrator from a close vantage point. He further states that

he had never seen the perpetrator before, but the affidavit does not indicate that Scott

knew or was familiar with defendant. Scott’s testimony would be cumulative to that

of two other witnesses presented by the defense (defendant’s uncle and McDaniel),

who testified that defendant was not the shooter. The other two affidavits purport

to provide alibi testimony, but they, too, are merely cumulative of other testimony

offered at trial on defendant’s behalf.

Defendant was not deprived of a substantial defense. We conclude that

defendant has not made the necessary showing to warrant an evidentiary hearing to

develop the factual basis for his claim of ineffective assistance of counsel.

Hall, 2004 Mich. App. LEXIS 3614, at *13-15. 

Respondent asserts that this decision did not involve an unreasonable application of clearly

established Supreme Court law. “Judicial scrutiny of counsel’s performance must be highly

deferential.” Strickland v. Washington, 466 U.S. 668, 689 (1984). “[A] court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional assistance;

that is, the defendant must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy. There are countless ways to provide effective

assistance in any given case.” Id. (quotation marks and citations omitted).

To prove the prejudice necessary to sustain a claim of ineffective assistance of counsel, “[i]t

is not enough for the [petitioner] to show that [counsel’s] errors had some conceivable effect on the

outcome of the proceeding” because “[v]irtually every act or omission of counsel would meet that

test, and not every error that conceivably could have influenced the outcome undermines the

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reliability of the result of the proceeding.” Strickland, 466 U.S. at 693 (citation omitted). Rather,

a petitioner has the heavier burden of showing a “reasonable probability,” sufficient to undermine

confidence in the outcome, that, “but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694; see also Richter, 131 S. Ct. at 792 (“The likelihood of a

different result must be substantial, not just conceivable.”). 

“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 130 S. Ct.

1473, 1485 (2010). “Establishing that a state court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult [because]. . . [w]hen § 2254(d) applies [as it does here], 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.” Richter, 131 S. Ct. at

778.

The Court finds that the Michigan Court of Appeals’s decision regarding Petitioner’s

ineffective-assistance-of-counsel claims is not contrary to, or an unreasonable application of, clearly

established Supreme Court precedent. 

First, Petitioner claims that his counsel was ineffective for failing to adequately investigate

his defense that Derrick Lyons was the true perpetrator. Trial counsel presented Michael Perry as

a defense witness with the intention of having him testify that he was in a drug rehabilitation

program with Derrick Lyons, and that Lyons told him that he had shot the victim. The prosecutor

objected to this proposed testimony on hearsay grounds, and the trial court concluded that Petitioner

had not shown sufficient corroborating circumstances to admit it under the statement against penal

interest exception. Petitioner’s complaint is that had his trial counsel adequately investigated the

defense he would have obtained records from the treatment center to show that Lyons and Perry

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were at the center at the same time. 

This claim is not well taken. After trial counsel was initially unable to admit the statement

through Perry, he called Lyons himself as a witness. Lyons admitted that he was at the center.

Counsel then presented the testimony of Ronald Hall and Carey McDaniel who claimed that they

were eyewitnesses to the shooting, and they identified Lyons as the shooter. Defense counsel then

recalled Perry, and Perry was allowed to testify to Lyons’s admission. Trial Tr. Vol. IV, 54, Aug.

21, 2003. Accordingly, defense counsel did not perform deficiently by failing to obtain records from

the treatment center because they were not needed in light of Lyons’s admission that he was at the

center with Perry. Nor was Petitioner prejudiced in any way because Lyons’s admission to Perry was

ultimately introduced into evidence. 

Petitioner next claims that his counsel was ineffective for failing to call additional alibi

witnesses. Petitioner’s defense was that he was at his apartment in Taylor, Michigan when the

shooting occurred. In support of this defense he presented three alibi witnesses. Joyce Hall,

Petitioner’s mother, testified that she was with Petitioner at his home on the day in question. Robin

Peguese also testified that she was with Petitioner at his home at the relevant time. Lastly, Kevin

Dowd testified that he called Petitioner’s house during the relevant time frame and spoke with

Petitioner while he was at home.

Petitioner asserts that his counsel was ineffective for failing to call two additional alibi

witnesses, Juiley Mosley and Sandra Hall, whose affidavits state that they were also with Petitioner

at his house on the day in question. Mosley’s affidavit states that she was contacted by trial

counsel’s investigator, and that she told him that she did not want to testify because she was afraid

she would get hurt. She stated that she would only agree to testify if her safety would have been

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guaranteed. Sandra Hall’s affidavit does not indicate whether she was contacted by defense counsel,

but Peguese testified at trial that Sandra Hall was present at Petitioner’s house, so her identity was

known.

Petitioner has not overcome the presumption that his trial counsel’s decision not to call these

additional alibi witnesses was based on reasonable trial strategy. The affidavits of the missing

witnesses do not contain any information that was not covered by the three alibi witnesses who did

testify at trial. Accordingly, their testimony would have been cumulative in substance. Mosley’s

affidavit indicates that she refused to testify, and therefore counsel may have concluded that she

would not be a good witness. While another attorney may have called all five alibi witnesses instead

of three, “[t]here are . . . ‘countless ways to provide effective assistance in any given case. Even the

best criminal defense attorneys would not defend a particular client in the same way.’ ” Richter, 131

S. Ct. at 788-89 (citation omitted). 

Because the state court did not hold a hearing on this claim, the precise reasoning behind

counsel’s decision not to call all five alibi witnesses is unknown. The state court was not required

to hold a hearing on the claim to gain the benefits of review under § 2254(d). Richter,131 S. Ct. at

784. In Cullen v. Pinholster, 131 S. Ct. 1388 (2011), the Supreme Court held that “review under

§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the

merits.” There are any number of legitimate strategic reasons trial counsel may have elected not to

call Sandra Hall and Juiley Mosley as additional alibi witnesses, and nothing in the existing record

suggests that it was the result of deficient performance. Rather, a fair reading of the record suggests

that defense counsel presented a vigorous and well-prepared defense on behalf of Petitioner. The

Michigan Court of Appeals’s decision rejecting Petitioner’s ineffective assistance of counsel claim

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on the merits was not unreasonable.

H

Petitioner’s remaining habeas claims were presented to the state courts in his motion for

relief from judgment and the appeal that followed its denial. The Michigan Supreme Court denied

relief pursuant to Michigan Court Rule 6.508(D), which provides, in part, that a court may not grant

relief to a defendant if the motion for relief from judgment alleges grounds for relief which could

have been raised on direct appeal, absent a showing of good cause for the failure to raise such

grounds previously and actual prejudice resulting therefrom. See Mich. Ct. R. 6.508(D)(3). The

United States Court of Appeals for the Sixth Circuit has recently held that the form order used by

the Michigan Supreme Court to deny leave to appeal in this case is unexplained because its citation

to Michigan Court Rule 6.508(D) is ambiguous as to whether it refers to a procedural default or a

rejection on the merits. See Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc).

Consequently, under Guilmette, this Court must “look through” the unexplained order of the

Michigan Supreme Court to the state trial court’s decision to determine the basis for the denial of

state post-conviction relief.

In this case, the state trial court clearly denied relief on procedural grounds. The trial court

cited Michigan Court Rule 6.508(D)(3)(b) and concluded that Petitioner could not establish cause

and actual prejudice. Accordingly, Petitioner’s ninth, tenth, eleventh, twelfth, and fourteenth claims

are procedurally defaulted.

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

federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting

from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. See

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Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Nields v. Bradshaw, 482 F.3d 442 (6th Cir.

2007).

In his thirteenth claim, Petitioner advances ineffective assistance of appellate counsel as

cause to excuse his default. In order to establish ineffective assistance of counsel, Petitioner must

show “that counsel’s performance was deficient ... [and] that the deficient performance prejudiced

the defense.” Strickland, 466 U.S. at 687. 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). In fact, “the hallmark of effective appellate advocacy” is the “process of ‘winnowing out

weaker arguments on appeal and focusing on’ those more likely to prevail.” See Smith v. Murray,

477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52). “Generally, only when ignored

issues are clearly stronger than those presented will the presumption of effective assistance of

appellate counsel be overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). Appellate

counsel may deliver deficient performance and prejudice a defendant by omitting a “dead-bang

winner,” defined as an issue which was obvious from the trial record and would have resulted in

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

Petitioner has failed to show that by omitting the claims presented in his motion for relief

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from judgment, appellate counsel’s performance fell outside the wide range of professionally

competent assistance. Appellate counsel presented four legitimate issues on direct appeal. Such

issues, although ultimately unsuccessful, were not clearly weaker than the issues raised in the motion

for relief from judgment. In fact, Petitioner still advances his direct-appeal issues in this case,

claiming that they entitle him to habeas relief. Moreover, Petitioner filed a supplemental pro se brief

during his direct appeal in which he raised an additional four issues. Petitioner has not explained

what objective factor prevented him from presenting his new issues in that pro se pleading.

Petitioner has thus failed to demonstrate that appellate counsel was ineffective so as to establish

cause to excuse his procedural default. The Court need not address the issue of prejudice when a

petitioner fails to establish cause to excuse a procedural default. See Long v. McKeen, 722 F.2d 286,

289 (6th Cir. 1983). 

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

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

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

478, 479-80 (1986). To be credible, such a claim of actual innocence requires a petitioner to support

the allegations of constitutional error with new reliable evidence that was not presented at trial.

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

legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). Petitioner has made no such

showing.

IV

Before Petitioner may appeal this Court’s dispositive decision, a certificate of appealability

must issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may

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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 court rejects a habeas claim on the merits, the substantial showing

threshold is met if the petitioner demonstrates that reasonable jurists would find the district court’s

assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473,

484-85 (2000). “A petitioner satisfies this standard by demonstrating that . . . jurists could conclude

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

Cockrell, 537 U.S. 322, 327 (2003). I n applying that standard, a district court may not conduct a

full merits review, but must limit its examination to a threshold inquiry into the underlying merit of

the petitioner’s claims. Id. at 336-37.

Petitioner has not made a substantial showing of the denial of a constitutional right.

Accordingly, a certificate of appealability is not warranted in this case. Petitioner should not be

permitted to proceed in forma pauperis on appeal, as any appeal would be frivolous. See Fed. R.

App. P. 24(a).

V

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

relief.

Accordingly, it is ORDERED that the petition for writ of habeas corpus [Dkt. #1] is

DENIED.

It is further ORDERED that a certificate of appealability is DENIED.

It is further ORDERED that permission to proceed in forma pauperis on appeal is DENIED.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: June 9, 2011

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PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney of record herein by electronic means and on

Dwayne Hall, #347194 at Richard A. Handlon Correctional Facility,

1728 Bluewater Highway, Ionia, MI 48846 by first class U.S. mail on

June 9, 2011.

s/Tracy A. Jacobs 

TRACY A. JACOBS

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