UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ASKIA HILL #331718, 

 Petitioner, 

CASE NO. 5:08-CV-14102 

v. HONORABLE JOHN CORBETT O'MEARA

 UNITED STATES DISTRICT JUDGE 

WAYNE COUNTY, HONORABLE MONA K. MAJZOUB 

 UNITED STATES MAGISTRATE JUDGE 

 Respondent. 

 / 

Respondent’s Answer in Opposition to Petition for Writ of Habeas Corpus 

Relevant Facts and Procedural History

Following a jury trial, Petitioner Askia Hill was convicted of one count of assault with 

intent to commit murder; carjacking; felon in possession of a firearm; and felony firearm. In 

May 2004, Petitioner was sentenced as a second habitual offender to 13-to-30 years in prison for 

the assault and carjacking convictions; 3-to-7 1⁄2 years for the felon in possession conviction; and 

to a consecutive 2 years for the felony firearm conviction. Petitioner was tried jointly with 

DeShawn Whitman and Marcus Taylor.1

 The Michigan Court of Appeals summarized the facts 

as follows2: 

 

1

 The trial prosecutor was John Dakmak. Trial counsel for DeShawn Whitman was Gabi Silver. 

Trial counsel for Petitioner was Robert Elsey. Trial counsel for Marcus Taylor was David 

Cripps. Whitman was convicted of one count of assault with intent to commit murder; 

carjacking; felon in possession of a firearm; and felony firearm. Taylor was acquitted of all 

charges (relating to both shootings). 

2

 Additional facts will be provided as needed. Respondent objects to Petitioner’s statement of 

the facts to the extent that the statements are not supported by the record. 

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Defendants were tried jointly as a result of two shootings on April 6, 2000. 

Relating to the murder charges, Erwin Wilson was shot and killed in front of 4171 

Drexel, in Detroit. The assault with intent to murder and carjacking charges arose 

out of another shooting, in which Jermaine Davenport, Wilson's cousin, was shot 

in the neck and his vehicle, a Yukon, was taken. [Whitman and Hill] were 

acquitted of first-degree murder and the lesser offense of second-degree murder. 

The prosecution's theory was that Hill, Whitman, Taylor and a fourth man, 

were in a black SUV around 10:00 p.m. on April 6, 2000, and shot and killed 

Erwin Wilson, a street-level drug dealer, in front of 4171 Drexel Street. A few 

minutes later, the black SUV approached Jermaine Davenport, Wilson's cousin, 

who was in another SUV parked on the street talking to fourteen-year-old Unique 

Webster. Someone from the black SUV shot at Davenport and the SUV and 

chased him, until Davenport's SUV crashed into a parked car and stopped. 

Davenport got out of his SUV and was shot at by Whitman and the others. 

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

taken by several of the perpetrators. Davenport walked to the house on Drexel, 

saw Wilson lying in the street, and saw Roosevelt Walker, a friend of Davenport's 

with whom Davenport had been earlier. Davenport did not name any perpetrators 

until well after the shootings. In May 2000, Davenport was charged with Wilson's 

murder, but the charges were later dropped. 

Defendant Whitman's defense theory was that Jermaine Davenport argued 

with Wilson on the evening in question and was in the SUV from which the shot 

that killed Wilson was fired. Defendant Hill's defense was that he was not present 

at either shooting incident, and that Jermaine Davenport, who was involved in 

drug-dealing along with Wilson, had every reason to lie regarding this case. 

[People v. Hill, unpublished per curiam opinion dated 2/7/06, Court of Appeals 

No. 256497][footnote omitted] 

 

In July 2004,3 Petitioner filed a claim of appeal with the Michigan Court of Appeals and 

later raised the following claims in his brief on appeal: 

I. The trial court's refusal to sever the charges relating to Irwin Wilson, from 

those relating to Jermaine Davenport, was an abuse of discretion which 

denied [Petitioner] of a fair trial and due process of law under the Sixth 

and Fourteenth Amendments. 

II. [Petitioner was denied a fair trial and his constitutional right to present a 

defense and to due process under the Sixth and Fourteenth Amendments, 

 

3

 In July 2004, Petitioner filed with the trial court a motion for new trial. The trial court denied 

Petitioner's motion in an order dated October 1, 2004. (The motion and order is part of the 

Michigan Supreme Court No. 130576 material.) 

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through the trial court's (A) comments and interjections, and (B) 

limitations upon cross-examination, such that the defense was belittled and 

unfairly limited in its presentation. 

The People filed a brief on appeal. (People's brief on appeal dated 6/3/05) On February 7, 2006, 

the Michigan Court of Appeals issued an unpublished per curiam opinion affirming Petitioner's 

convictions. (People v. Hill, Court of Appeals No. 256497) 

Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, 

where it appears that he raised the same claims he raised in the Michigan Court of Appeals. The 

People filed a brief in opposition. (People's brief dated 2/28/06) On September 26, 2006, the 

Michigan Supreme Court denied Petitioner's application for leave to appeal because it was not 

persuaded that the questions presented should be reviewed. (People v. Hill, Michigan Supreme 

Court No. 130576) 

In December 2006, Petitioner filed with the trial court a motion for relief from judgment 

and raised the following claims, as summarized by the trial court: 1) that MCL 770.1; MSA 

28.1098 precludes operation of the cause and prejudice standard set forth under MCR 

6.508(D)(3)(a); 2) that he was denied effective assistance of appellate counsel, where counsel 

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

allowing the introduction of evidence without the laying of proper foundation; and 4) that 

defendant's right to confrontation was violated when not allowed cross-examine, codefendant 

Whitman; and 5) that the sentencing guidelines were based on facts that the prosecutor had not 

introduced into evidence. The trial court denied Petitioner's motion in an opinion dated April 16, 

2007. (This opinion is part of the Court of Appeals No. 278435 material.) 

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 In June 2007, Petitioner filed a delayed application for leave to appeal with the Michigan 

Court of Appeals, appealing the denial of his motion for relief from judgment. Petitioner argued 

that: 

I. The trial court abused its discretion and violated [Petitioner's] 

constitutional rights of due process, equal protection, and fair trial by 

allowing state evidence to be introduced without the proper foundation 

being laid. 

II. It was reversible error for the trial court to allow Mr. Whitman's 

statements to be heard via Sgt. Abdella in lieu of live testimony before the 

trier of facts in violation of [Petitioner's] constitutional right to 

confrontation and his right to a fair trial where Mr. Whitman's testimony 

was admitted into evidence via Sgt. Abdella without a showing of 

unavailability and a prior opportunity for cross-examination by 

[Petitioner] at trial. 

III. The trial court violated [Petitioner's] federal constitutional rights, U.S. 

Const. Ams V, VI, XIV at sentencing by scoring the statutory sentencing 

guidelines based on its findings of additional facts which the prosecutor 

had not charged, which had not been submitted to the jury, and which 

[Petitioner] had not admitted. 

On December 14, 2007, the Michigan Court of Appeals denied Petitioner's delayed application 

"for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." 

(People v. Hill, Court of Appeals No. 278435) 

Petitioner then filed an application for leave to appeal with the Michigan Supreme Court. 

On June 23, 2008, the Michigan Supreme Court denied Petitioner's application because 

Petitioner "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." 

(People v. Hill, Michigan Supreme Court No. 135648) 

In September 2008 Petitioner, pursuant to 28 U.S.C. § 2254, filed a habeas petition and 

supporting brief. Petitioner raises the following claims in his brief: 

I. The trial court's refusal to sever the charges relating to Irwin Wilson from 

those relating to Jermaine Davenport was an abuse of discretion which 

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denied [Petitioner] a fair trial and due process under the Sixth and 

Fourteenth Amendments. 

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

defense and to due process under the Sixth and Fourteenth Amendments 

through the trial court's (A) comments and interjections, and (B) 

limitations upon cross examination such that the defense was belittled and 

unfairly limited in its presentation. 

III. [Petitioner] was denied effective assistance of appellate counsel as cause 

for his failure to raise these meritorious claims on direct appeal. 

IV. The trial court abused its discretion and violated [Petitioner's] 

constitutional rights of due process, equal protection, and fair trial by 

allowing state evidence to be introduced without the proper foundation 

being laid. 

V. It was reversible error for the trial court to allow Mr. Whitman's 

statements to be heard via Sgt. Abdella in lieu of live testimony before the 

trier of facts in violation of [Petitioner's] constitutional right to 

confrontation and his right to a fair trial where Mr. Whitman's testimony 

was admitted into evidence via Sgt. Abdella without a showing of 

unavailability and a prior opportunity for cross-examination by 

[Petitioner] at trial. 

VI. The trial court violated [Petitioner's] federal constitutional rights, U.S. 

Const. Ams V, VI, & XIV at sentencing by scoring the statutory 

sentencing guidelines based on its findings of additional facts which the 

prosecutor had not charged, which had not been submitted to the jury, and 

which [Petitioner] had not admitted. 

 

VII. [Petitioner] should have been appointed appellate counsel to represent him 

on first tier review in the Court of Appeals pursuant to the Sixth Circuit's 

decision based upon Simmons v. Kapture, 474 F.3d 896 (2005) that 

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

applied retroactively on collateral review. 

Respondent now answers the petition and requests that this Honorable Court deny habeas 

relief for the reasons below. In addition, Respondent asserts any and all available defenses 

including failure to exhaust state court remedies, the statute of limitations, and procedural default 

for each claim to which it is applicable. To the extent that any of the alleged trial errors are 

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meritorious, Respondent asserts that they did not have a substantial impact or influence on the 

outcome of Petitioner’s trial. Respondent opposes any request for discovery, evidentiary 

hearings, bond, oral argument, or any other relief. 

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Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) altered the 

standard of review that federal courts must apply when reviewing applications for a writ of 

habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the 

act, April 24, 1996. Because Petitioner’s application was filed after April 24, 1996, the 

provisions of the AEDPA, including the amended standard, apply to this case. 

As amended, 28 U.S.C. § 2254(d) imposes the following standard of review that a federal 

court must utilize when reviewing applications for a writ of habeas corpus: 

(d) An application for a writ of habeas corpus on behalf of a person in 

custody pursuant to the judgment of a State court shall not be granted with 

respect to any claim that was adjudicated on the merits in State court 

proceedings unless the adjudication of the claim- 

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

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States, or 

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

determination of the facts in light of the evidence presented in the 

State court proceeding. 

Under 28 U.S.C. § 2254(d)(1), the writ may issue only if one of two conditions is 

satisfied—the State court adjudication resulted in a decision that (1) “was contrary to . . . clearly 

established Federal law, as determined by the Supreme Court of the United States,” or (2) 

“involved an unreasonable application . . . of clearly established Federal law, as determined by 

the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court 

may grant the writ if the state court arrives at a conclusion opposite to that reached by the 

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

Supreme Court has on a set of materially indistinguishable facts. Under the “unreasonable 

application” clause, a federal habeas court may grant the writ if the state court identifies the 

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correct governing principle from the Supreme Court’s decision but unreasonably applies that 

principle to the facts of the prisoner’s case. In Williams v. Taylor, 529 U.S. 362, 411 (2000), the 

Supreme Court stated that: 

[I]n § 2254(d)(1), Congress specifically used the word “unreasonable,” and not a 

term like “erroneous” or “incorrect.” Under § 2254(d)(2)’s “unreasonable 

application” clause, then, a federal habeas court may not issue the writ simply 

because the court concludes in its independent judgment that the relevant statecourt decision applied clearly established law erroneously or incorrectly. Rather, 

that application must also be unreasonable. 

Even prior to the enactment of the AEDPA, the Supreme Court stated that a “federal 

habeas court, should, of course, give great weight to the considered conclusions of a coequal 

state judiciary.” Miller v. Fenton, 474 U.S. 104, 112 (1985). The Supreme Court has warned the 

federal courts against too readily granting habeas relief simply because it disagrees with the state 

court’s decision. In Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), the Supreme Court stated: 

“A federal court's collateral review of a state-court decision must be consistent with the respect 

due state courts in our federal system.” In Woodford v. Visciotti, 537 U.S. 19, 24 (2002), the 

Supreme Court stated 28 U.S.C. § 2254(d) imposes a highly deferential standard for evaluating 

State court rulings on habeas review, and “demands that state court decisions be given the benefit 

of the doubt.” The Supreme Court further stated that a “readiness to attribute error is 

inconsistent with the presumption that state courts know and follow the law.” Woodford, 537 

U.S. at 24. 

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Argument I

Petitioner is not entitled to habeas relief on his first habeas claim because the 

claim is not cognizable or without merit and because the state court 

adjudications of this claim were neither contrary to nor an unreasonable 

application of clearly established Supreme Court precedent or an 

unreasonable determination of the facts. 

In his first habeas claim, Petitioner alleges that the trial court's refusal to sever the 

charges relating to Wilson from those relating to Davenport constituted an abuse of discretion 

which violated his right to a fair trial. Petitioner raised this claim on direct appeal but the 

Michigan Court of Appeals rejected it: 

Defendant Hill challenges the trial court's denial of his motion for 

severance, where the allegations in the two incidents involved different 

complaining witnesses, different locations, although near, and different times, 

although close in time. 

This Court reviews a trial court's determination whether severance is 

mandatory de novo. Review of the trial court's decision to sever related offenses 

is for an abuse of discretion. 

The trial court noted in denying defendant's motion for severance: 

One could certainly argue from a review of the preliminary exam 

transcripts that the actions at issue, the offenses at issue as reflected in the 

information are a series of connected acts or acts constituting part of a 

single scheme or plan. Therefore, I certainly don't believe and I certainly 

know that severance is not mandated. 

The focus of Mr. Cripps' argument was requesting a . . . discretionary 

severance pursuant to 6.121(C) and (D). . . . 

Looking at this case, thee [sic] issue is what is the best interest of assuring 

a fair trial to not only the defense, but also the prosecution. Looking at the 

parties resources, the potential for confusion or prejudice, the nature of the 

evidence, convenience of the witnesses, I certainly don't see that severance 

is necessary to avoid prejudice to any of the substantial rights of any of the 

defendants. 

Considering the facts which I just articulated, I think it's the best use of 

resources, to create the least potential for confusion or prejudice to the 

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parties, to a jury's understanding of the nature of the case, nature of the 

evidence, convenience of the witnesses, to not have severance in this case. 

MCR 6.120 provides: 

(A) Permissive Joinder. An information or indictment may charge a single 

defendant with any two or more offenses. . . . 

MCR 6.121(D), JOINDER AND SEVERANCE; MULTIPLE DEFENDANTS, 

provides: 

(C) Right of Severance; Related Offenses. On a defendant's motion, the 

court must sever the trial of defendants on related offenses on a showing 

that severance is necessary to avoid prejudice to substantial rights of the 

defendant. 

(D) Discretionary Severance. On the motion of any party, the court may 

sever the trial of defendants on the ground that severance is appropriate to 

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

innocence of one or more of the defendants. Relevant factors include the 

timeliness of the motion, the drain on the parties' resources, the potential 

for confusion or prejudice stemming from either the number of defendants 

or the complexity or nature of the evidence, the convenience of witnesses, 

and the parties' readiness for trial. 

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

Two offenses are related if they are based on the same conduct or a series of 

connected acts. MCR 6.120(B). The prosecution maintains, and we agree, that 

Erwin Wilson's murder and the assault on Jermaine Davenport, Wilson's cousin, 

constitute "connected acts" under the court rule. Shortly before Wilson was shot, 

Davenport was parked in his SUV and saw a black SUV drive by, driven by 

defendant Whitman, with defendant Hill in the passenger seat and codefendant 

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

Unique Webster's house and heard gunshots. The black SUV drove away, but 

Davenport saw it about five minutes later, at which time he heard gunshots and 

his vehicle's rear window shattering. Davenport drove off, was pursued, and after 

crashing into a parked car, got out of his SUV and saw defendants Whitman and 

Hill and Taylor next to the black SUV. All the men shot at Davenport, he was 

struck in the neck, and the men drove away in his SUV and the black SUV. The 

acts happened within minutes, in proximity to each other, and the shooting of 

Wilson may have been the motive to Davenport's shooting. We conclude that the 

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

Nor was the trial court's denial of defendant's request for severance an 

abuse of discretion. The trial court set forth its reasons for denying severance, see 

quoted excerpt, supra, and the record supports its determination. Had the court 

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granted severance, a second trial would have been necessary, in which the same 

witnesses would have testified. No risk of confusion of the issues existed because 

the case was not complex, and there was a close connection between the 

shootings. We conclude the trial court did not abuse its discretion by denying 

defendant Hill's motion for severance. [People v. Hill, unpublished per curiam 

opinion dated 2/7/06, Court of Appeals No. 256497][citations omitted] 

 

To the extent that Petitioner alleges a violation of the Michigan Constitution, Michigan 

Court Rules, or Michigan law, such claims are not cognizable upon federal habeas review. A 

federal habeas court may only grant habeas relief to a petitioner “in custody in violation of the 

Constitution or laws or treaties of the United States,” 28 U.S.C. § 2241(c)(3); 28 § U.S.C. 

2254(a), and habeas relief may not be based upon perceived error of state law. Gilmore v. 

Taylor, 508 U.S. 333 (1993); Estelle v. McGuire, 502 U.S. 62 (1991); Lewis v. Jeffers, 497 U.S. 

764 (1990); Smith v. Phillips, 455 U.S. 209 (1982). 

Petitioner has failed to show a violation of his federal constitutional rights. Improper 

joinder does not, by itself, violate the federal constitution. Misjoinder rises "to the level of a 

constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth 

Amendment right to a fair trial." United States v. Lane, 474 U.S. 438, 446, n. 8 (1986). 

In considering whether the denial of severance of charges amounted to an error 

warranting habeas relief, the issue is not whether the failure to sever counts for separate trials 

was a violation of a state rule of procedure, but whether the failure to sever denied the petitioner 

due process of law under the Fourteenth Amendment. In order to obtain federal habeas relief, a 

habeas petitioner must show that the misjoinder of separate criminal charges in a single trial in 

state court resulted in prejudice so great as to deny the petitioner his right to a fair trial. Davis v. 

Coyle, 475 F. 3d 761, 777 (6th Cir. 2007). 

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In this case, the trial court's decision to deny Petitioner's motion to sever the charges 

involving Wilson and Davenport was not an abuse of discretion. As the People correctly argued, 

the charges were related and the trial court properly exercised its discretion to deny severance4

: 

In this case, the trial court correctly determined that severance was not 

mandatory because the count charging defendant with murdering Irwin Wilson 

was related to the counts charging defendant with assaulting Jermaine Davenport 

and taking his car. 4/16, 19. For purposes of the court rule, two offenses are 

related if they are based on “the same conduct” or “a series of connected acts or 

acts constituting part of a single scheme or plan.” In People v Tobey, the decision 

on which the court rule is patterned, our the Court explained that “same conduct” 

refers to multiple offenses “as where a defendant causes more than one death by 

reckless operation of a vehicle” or “offenses within a close-time space sequence, 

as with the killing of several people with successive shots from a gun or the 

successive burning of several structures.” A series of connected acts refers to 

offenses “committed to aid in accomplishing another,” and offenses evincing a 

“single scheme” are related “even if considerable time passes between them.” 

The murder of Irwin Wilson and the assault on Wilson’s cousin, Jermaine 

Davenport, were clearly “connected acts” for purposes of the court rule. A few 

minutes before Wilson was shot, Davenport saw a black SUV drive past him as he 

was sitting in his parked SUV on Drexel St. Codefendant DeShawn Whitman was 

driving that car, defendant was in the passenger seat, and codefendant Marcus 

Taylor and another man were in the back seat. 4/22, 93-100. Davenport saw the 

SUV stop in front of the home of Unique Webster, and heard gunshots from that 

direction. 4/22, 110-113. The SUV drove away, but Davenport saw it again 

approximately five minutes later. He heard gunshots, and his back window 

shattered. Davenport fled in his truck and drove through a field. After colliding 

with a parked car, he got out of his truck and saw defendant, codefendants, and 

the fourth man in the street next to the black SUV. Codefendant Whitman said 

“bitch ass nigger,” and all the men shot at Davenport. 4/22, 115-123. Davenport 

fell to the ground after being shot in the neck. He saw his assailants drive away in 

his truck and the black SUV. 4/22, 122-124. 

The murder, assault with intent to murder, and carjacking were clearly part 

of the same criminal episode. Davenport’s status as a witness to the murder, who 

could identify defendant and his codefendants, provided the motive for them to 

shoot him a few minutes later. This case thus is distinguishable from cases in 

which courts had to decide whether the similarities between the offenses showed 

that they were part of a single scheme or plan. Here, the offenses were connected 

acts because the incidents occurred within minutes of each other at nearby 

locations and the first shooting established the motive for the second shooting. 

 

4

 The People cite to the transcripts as follows: month/day of proceedings, page numbers. 

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Given that close connection, the trial court correctly concluded that severance was 

not mandatory because the offenses were related for purposes of MCR 6.120. 

The trial court did not abuse its discretion in denying defendant’s request 

for severance under MCR 6.120(C). The court properly weighed the relevant 

factors . . . . 

The record supports the trial court’s determination in that regard. 

Severance would have entailed a second lengthy trial in which the same witnesses 

would have testified. The case was not complex, and, given the close connection 

between the offenses, no risk of confusion of the issues existed. Nor was there an 

increased potential for prejudice where both the murder and the assault with intent 

to murder offenses arose from shootings. Weighing all the factors, the trial court’s 

decision not to sever the offenses surely was not an abuse of discretion. 

Finally, even assuming arguendo that the trial court erred, the error was 

harmless. To justify reversal of his convictions on the basis of preserved 

nonconstitutional error defendant must show that it is more probable than not that 

the error was outcome determinative. Error is outcome determinative if it 

undermined the reliability of the verdict. “The error is presumed to be harmless, 

and the defendant bears the burden of showing that the error resulted in a 

miscarriage of justice.” 

Here, the alleged error does not undermine the reliability of the verdict. 

Defendant was not prejudiced because evidence of the murder of Wilson would 

have been admissible in a trial on the other charges to show defendant’s motive. 

Moreover, the jury's decisions to acquit defendant and codefendant Whitman of 

murder and acquit codefendant Taylor of all charges demonstrate that the jury 

considered the offenses separately and determined the culpability of each 

defendant. 5/10, 5-14. On this record, error, if any, in not severing the offenses 

was clearly harmless. [People's brief dated 2/28/06, pp 5-9, Michigan Supreme 

Court No. 130576][footnotes omitted] 

 Petitioner has failed to meet his burden of showing that the joinder of the charges resulted 

in either an abuse of discretion or prejudice so great as to deny him a fair trial. Moreover, the 

People correctly argued that any error was harmless.5

 Because the state court adjudications of 

Petitioner's first habeas claim were neither contrary to nor an unreasonable application of clearly 

 

5

 The trial court also instructed the jury that they may consider only the evidence and the fact that 

a defendant is charged with more than one crime is not evidence. (Transcript dated 5/5/04, p 

199) Jurors are presumed to follow the trial court's instructions. 

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established Supreme Court precedent, or an unreasonable determination of the facts, habeas 

relief is not warranted on Petitioner's first claim. 

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Argument II

Petitioner is not entitled to relief on his second habeas claims because the 

claims are not cognizable or without merit and because the state court 

adjudications of these claims were neither contrary to nor an unreasonable 

application of clearly established Supreme Court precedent or an 

unreasonable determination of the facts. 

In his second habeas claim, Petitioner alleges he was denied a fair trial and his right to 

present a defense. Specifically, Petitioner alleges that his attorney was restricted from fully 

testing Unique Webster’s credibility and that the trial court’s comments and interjections 

interrupted defense counsel’s ability to present a defense for Petitioner, and operated to prejudice 

Petitioner. Petitioner raised these claims on direct appeal but the Michigan Court of Appeals 

rejected them. 

The Michigan Court of Appeals first accurately noted that a trial court had broad 

discretion to control trial proceedings and, in doing so, may impose limits on cross-examination. 

After setting forth the relevant law with respect to cross-examination, and noting that the right of 

cross-examination is not unlimited, the Court of Appeals stated the following: 

The crux of defendant Hill's Confrontation Clause argument is: 

The Trial Court determined that as one of the three defense attorneys (each 

of whom obviously represented individual client-defendants) was 

thorough, the remaining two attorneys could be limited. Mr. Hill's counsel 

pointed-out after the cross-examination of Unique Webster, a res gestae 

witness to the murder, that there remained six or seven additional areas he 

wanted to question Miss Webster about; the Court asked counsel to 

explain the six or seven, and, after counsel proceeded, acknowledged that 

counsel had described eight or nine areas. For example, counsel wanted to 

follow-up on the discrepancies in Miss Webster's trial testimony about 

hearing tires squealing, in contrast to her previous testimony about hearing 

nothing; to follow-up on the testimony about false police reports and lack 

of intimidation, the existence or non-existence of other vehicles on the 

street (i.e., a white Dodge Dynasty), the possibility that Walker and 

Davenport were, or appeared to be stalking Wilson, the nature of the 

relationship with Wilson, and other details, that would have served to 

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properly present her credibility to the jury for consideration. Her 

credibility was crucial to the case; not only was she present during the 

murder, and gave differing versions shortly after and a month after, of 

what exactly had happened, but she was also present when her brother 

Michael gave a statement incriminating Davenport as the murderer, and 

she signed the statement. She had spoken with Davenport at the various 

pre-trial court hearings. Defense counsel was improperly limited from 

fully testing her credibility; the court's ruling deprived Mr. Hill from 

effectively defending against the charges. 

The prosecution asserts, and we agree, that the record shows that the areas 

defendant Hill's counsel identifies above were covered by him at trial or by codefendant Whitman's counsel. Hill's counsel cross-examined Unique Webster 

regarding whether she heard a car approach and drive away, and whether she 

heard screeching of tires, and he impeached her testimony in that regard. Hill's 

counsel also cross-examined Webster regarding her prior identification of 

Davenport. 

Co-defendant Whitman's counsel cross-examined Webster regarding 

whether she saw Davenport's car and any cars she did not recognize. Whitman's 

counsel impeached Webster with her statement to the police, and questioned her 

regarding whether she saw Davenport drive on her street earlier that day. 

Whitman's counsel also impeached Webster with a prior statement indicating that 

she at times saw Walker riding with Davenport, and whether she had seen Walker 

on the street. Whitman's counsel cross-examined Webster regarding her 

relationship with Wilson, Wilson's drug-dealing activities, and her inconsistent 

statements regarding those issues. Whitman's counsel also impeached Webster 

with inconsistent statements she made about the shooting, Wilson's actions, and 

whether she saw a black truck. 

We agree with the prosecution that Webster's inconsistent statements and 

biases were explored at length during trial. Impeachment of Unique Webster by 

defense counsel was rampant. We conclude that a reasonable jury would think 

very little of her credibility, and that further cross-examination could have done 

little to further diminish their view of her credibility. Thus, if there was error in 

limiting defendant Hill's counsel's cross-examination of Unique Webster, it was 

harmless because additional questioning would not have caused the jury to alter 

its determinations of her credibility and the weight to accord her testimony. 

[People v. Hill, unpublished per curiam opinion dated 2/7/06, Court of Appeals 

No. 256497][citations omitted] 

Any alleged violation of Petitioner's rights under the Michigan Constitution or Michigan 

law is not cognizable. Petitioner has failed to show a violation of his federal constitutional 

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rights. The Confrontation Clause provides that "[in all criminal prosecutions, the accused shall 

enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. Amend VI. 

The Confrontation Clause protects a defendant’s literal right to confront witnesses at the time of 

trial and a defendant’s right to cross-examination. Delaware v. Fensterer, 474 U.S. 15 (1985). 

Petitioner here claims the Confrontation Clause was violated in the latter, scope of crossexamination, context. 

 A trial court has the discretion to limit the scope of cross-examination. Delaware v. 

VanArsdall, 475 U.S. 673, 675 (1986). This includes discretion to impose limits based on 

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

that is repetitive or only marginally relevant. Delaware v. Arsdall, supra; King v. Trippett, 192 

F.3d 517, 524 (6th Cir. 1999). Thus, the Confrontation Clause guarantees an opportunity for 

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

whatever extent, that the defense might desire. Delaware v. Fensterer, 474 U.S. at 20. 

 In Petitioner's case, the trial court made evidentiary rulings throughout trial, and on the 

seventh day of trial, placed time reasonable limits on cross-examination in the joint trial of three 

defendants. As the People correctly argued, the trial court did not abuse its discretion: 

During a pretrial hearing, the trial court indicated that, based on the order the 

defendants were listed in the case caption, “the order of the attorneys, unless 

agreed upon otherwise, will be Ms. Silver for Whitman, Mr. Elsey for Hill and 

Mr. Cripps for Taylor.” 4/16, 38. During the first day of jury selection, April 19, 

2004, the court indicated that it believed the case would be concluded by the 29 or 

3 but asked the prospective jurors to “keep May 3rd, May 4th open.” 4/19, 26. 

The court repeated that time estimate when an empaneled juror asked about the 

“time frame.” 4/21, 277-278. 

The People called ten witnesses over the next four days of trial. Among 

them was Jermaine Davenport, who was cross-examined by the defense attorneys 

for over one full day. 4/22, 152-184; 4/26, 4-198; 4/27, 20-55. Unique Webster 

was the final witness on the sixth day of trial. Counsel for codefendant Whitman 

cross-examined her at length that day. 4/28, 162-216. 

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On the morning of the seventh day of trial, the trial court realized that the 

trial was progressing at slower rate than the court and the parties had anticipated, 

and implemented a new procedure designed to speed up the trial: 

When I originally scheduled the trial, or I should say gave the jury 

the number of days to prepare themselves to be here, actually as all of you 

know, I added two extra days more than you gave me just to be on the safe 

side. Okay? 

And I’m truly concerned that my very, very conservative estimate 

is becoming very, very, very — What’s the word I’m looking for? Not 

accurate. 

And again, I gave, I added two more days onto what you guys told 

me. It does seem that some of the questions have been repetitive during 

subsequent cross-examination. 

So, this is my though that maybe we cal (sic) all work with. 

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

extensive cross-examination based upon all the discovery materials 

obviously. And then Mr. Elsey and Mr. Cripps, rather than going through 

everything that Ms. Silver has covered, which would apply to all three 

defendants, perhaps you might want to get in and wrap up or reiterate a 

couple key points that she made during her cross- examination, which 

would be in the best interest of your clients. And then if there’s a 

particular focus that you have that deals with your client, hit on that area. 

Okay? 

And I still think that that will lead to a truly, probably more 

effective cross-examination of a witness rather than re-inventing the wheel 

every time a lawyer starts a cross-examination. 4/29, 3-4. 

The procedure included limiting defense counsel and counsel for 

codefendant Taylor to twenty minutes of cross-examination of Unique Webster. 

4/29, 68. The court explained the reason for that limitation at the conclusion of 

Webster’s testimony. 

At five after 10:00, I think I called everybody up when Mr. Elsey 

was in his cross-examination. 

And I told Mr. Elsey he has twenty minutes. He had twenty 

minutes for cross-examination. And I believe I told Mr. Cripps the same 

thing. 

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Now, pursuant to Michigan Rule of Evidence 611, this is how 

we’re going to proceed with the remainder of the trial regarding the crossexamination and examination of witnesses. 

Mr. Dakmak will do his direct examination. Ms. Silver will do the 

cross- examination. I don’t see me placing any sort of time limit on the 

direct or cross- examination of Ms. Silver based upon what I’ve seen 

during the course of the trial, based on Mr. Dakmak’s prior directs and 

Ms. Silver’s prior cross- examinations. 

Subsequent attorneys will have twenty minutes maximum to 

follow up with their cross-examination on behalf of their clients. I think 

we’ve gone through the key witnesses in the trial, well, in terms of the 

extents (sic) of examination and cross-examination. 

Again, Ms. Silver will have as much time basically as she needs to 

do the cross-examination. Mr. Dakmak, you’ll have as much time as you 

need to do the direct examination of a witness. 

Ms. Silver’s very thorough, very well-prepared. And then Mr. 

Elsey and Mr. Cripps will have twenty minutes each to follow up on crossexamination at the most, the max, if you’ll need that amount of time. If 

you need more time, you have to petition the Court. 4/29, 68-69. 

Those reasonable limitations did not violate defendant’s right of 

confrontation. In making his objection, defense counsel identified several areas 

that he claimed he was prevented from exploring during cross-examination: (1) 

whether Webster heard screeching tires, (2) whether Webster saw vehicles driving 

away, (3) Webster’s statement to the police, (4) Webster’s reason for changing 

her statements and her two prior false police reports, (5) whether Webster saw a 

Dodge Dynasty on the street, (6) whether Webster saw Roosevelt Walker earlier 

in the day, and (7) whether Webster made inconsistent statements regarding 

Wilson’s arrival at her home on the night of the shooting. 4/29, 69-74. 

The record shows that the subjects identified by counsel were generally 

explored by him or counsel for codefendant Whitman. Defense counsel 

questioned Webster about whether she heard a car approach and whether she 

heard it drive away. 4/29, 39. He questioned her about whether she heard the 

“screeching” of tires, and impeached her testimony in that regard. 4/29, 41, 43-46. 

He also questioned her regarding her prior identification of Davenport. 4/29, 51. 

Codefendant Whitman’s counsel engaged in a lengthy cross-examination 

of Webster. She questioned her about whether she saw a Dynasty or other fourdoor car on the street, saw Davenport’s ear, and saw any cars that she did not 

recognize. Counsel impeached Webster with her statement to the police. 4/28, 

189-192, 210-211; 4/29, 77-78. Counsel questioned Webster about whether she 

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saw Davenport driving up and down street earlier in the day. 4/28, 193. She 

questioned Webster about whether she had seen Walker on street, and impeached 

her with a prior statement indicating that she sometimes saw him riding with 

Davenport. 4/28, 210. 

 

Codefendant’s Whitman’s counsel also questioned Webster about her 

relationship with Wilson, Wilson’s activities as a drug dealer, and her inconsistent 

statements regarding those matters. 4/28, 162-172, 183-186. Counsel impeached 

Webster with her inconsistent statements regarding shooting, Wilson’s actions, 

and whether she saw a black truck. 4/28, 193-200; 4/29, 6- 10, 16-21. She 

questioned Webster about her statement to Sergeant Wilson and two prior 

statements, and explored the inconsistencies between those statements and her 

testimony. 4/28, 200-212; 4/29, 21-36. 

The record, when considered as a whole, shows that the issues of 

Webster’s observations, inconsistent statements, and biases were fully developed 

and explored during trial. Because the defense had ample opportunity to probe the 

witness’ testimony through extensive cross- examination, the court’s decision to 

place time limits on defendant’s cross-examination of Webster did not violate his 

right of confrontation. The court did not abuse its discretion in limiting crossexamination to avoid the needless consumption of time resulting from repetitive 

questions,33 and that proper exercise of discretion did not deprive defendant of a 

fair trial.34 [People’s brief dated 2/28/06, pp 10-16, Michigan Supreme Court No. 

130756] 

____________________________________________________ 

33 The record reflects that the time limits did not restrict counsel’s crossexamination of the remaining witnesses. At the conclusion of his crossexamination of Roosevelt Walker, counsel stated “Judge, I think everybody has 

covered, Ms. Silver has covered the other questions that I have. So, I don’t think 

I’m going to have anything else.” 4/29,201. Counsel conducted brief 

examinations of six of the People’s witnesses on the eighth and ninth days of trial, 

and no cross-examination of the other two witnesses. 5/3, 30-3 1, 34-35, 56-60, 

66, 78, 91, 104, 182- 189; 5/4, 32, 49-50. Counsel briefly examined codefendant 

Whitman’s five witnesses and chose not to examine codefendant Taylor’s two 

witnesses. 5/4, 120-121, 179, 188, 201-204; 5/5, 18-25, 41, 57. 

34 Error, if any, was clearly harmless. . . . Here, the existing record shows that the 

topics of cross-examination identified by defense counsel were covered by 

codefendant Whitman’s attorney. Webster’s testimony and inconsistent 

statements were fully developed, and the additional questioning would not have 

caused the jury to alter its determinations of her credibility and the weight to 

accord her testimony. 

 The record reveals that the areas that Petitioner's attorney wanted to cover were covered 

either by him or counsel for codefendant Whitman. The issues of Webster's observations, 

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inconsistent statements, and biases were fully developed and explored during trial, and the trial 

court's reasonable limits on Petitioner's cross-examination of Webster did not violate his right of 

cross-examination. The People also properly pointed out that the trial court's time limits did not 

restrict counsel's cross-examination of the remaining witnesses—and Petitioner did not argue this 

on direct appeal. Moreover, any error was harmless where the record indicates that the topics of 

cross-examination identified by defense counsel were indeed covered by counsel for Whitman. 

Because the state court adjudication of this issue was supported by the record and was neither 

contrary to nor an unreasonable application of Supreme Court precedent, habeas relief is not 

warranted. 

 Petitioner also alleges that the trial court’s comments and interjections interrupted 

defense counsel’s ability to present a defense for Petitioner, and operated to prejudice Petitioner. 

The Michigan Court of Appeals disagreed: 

The trial court instructed counsel on how to refresh Davenport's memory 

and impeach him with prior testimony and statements. When counsel would not 

follow that procedure, the trial court held a sidebar. The trial court ruled on the 

People's objections to counsel's questioning of Davenport, and held sidebars and 

hearings outside the jury's presence because defense counsel persisted in arguing 

after the trial court had ruled. 

We conclude that defendant has failed to show that the trial court's 

comments and rulings suggested the court was biased in the prosecution's favor, 

nor is it likely that the court's remarks unduly influenced the jury such that 

defendant was denied a fair trial. [People v. Hill, unpublished per curiam opinion 

dated 2/7/06, Court of Appeals No. 256497] 

Petitioner has failed to show a violation of his federal constitutional rights. Petitioner's 

claim is essentially one alleging judicial bias. In reviewing a judicial bias claim, a court should 

employ the initial presumption that the assigned trial judge properly discharged his or her official 

duties. Harrison v. Anderson, 300 F.Supp.2d 690, 704 (S.D. Ind. 2004), citing Bracy v. 

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Gramley, 520 U.S. 899, 909 (1997). United States Supreme Court decisions addressing claims 

of a judicial bias follow two lines of reasoning: one line of cases address charges of "judicial 

bias" stemming from a trial judge's "personal interest," or "stake," in the outcome of a case, 

usually derived from some extrajudicial association with the cause or with one of the parties. In 

re Murchison, 349 U.S. 133, 136 (1955); Tumey v. Ohio, 273 U.S. 510, 532 (1927). Another line 

of cases are described as "judicial misconduct" cases, and includes cases in which the trial court 

is accused of conducting the proceedings in manner that suggests the favoring of one party over 

another. Liteky v. United States, 510 U.S. 540, 555-56 (1994); see also Alley v. Bell, 307 F.3d 

380, 386 (6th Cir. 2002)(This court has looked to the Supreme Court's decision in Liteky. . . to 

provide the standard for deciding judicial bias claims; in that case, the Court explained that "the 

pejorative connotation of the terms 'bias' and 'prejudice' demands that they be applied only to 

judicial predispositions that go beyond what is normal and acceptable.") Petitioner here alleges 

bias in the latter context. 

The due process clause requires a fair trial in a fair tribunal, before a judge with no actual 

bias against the defendant or interest in the outcome of the particular case. Bracy v. Gramley, 

520 U.S. 899, 904-905 (1997). In Liteky, the Supreme Court held that “judicial rulings alone 

almost never constitute a valid basis for a bias or partiality motion.” Liteky, 510 U.S. at 555. 

Judges’ opinions “as a result of what they learned in earlier proceedings” do not establish bias or 

prejudice against an individual or his case. Liteky, 510 U.S. at 551. To show improper bias, a 

judge’s comments must “display a deep-seated favoritism or antagonism that would make a fair 

judgment impossible.” Liteky, 510 U.S. at 551. "[A] judge's ordinary efforts at courtroom 

administration—even a stern and short-tempered judge's ordinary efforts at courtroom 

administration—remain immune." Liteky, 510 U.S. at 556. "[E]xpressions of impatience, 

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dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and 

women, even after having been confirmed as federal judges, sometimes display" do not establish 

"bias or partiality." Liteky, 510 U.S. at 555-556. The “pejorative connotation of the terms ‘bias’ 

and ‘prejudice’ demands that they be applied only to judicial predispositions that go beyond what 

is normal and acceptable.” Liteky, 510 U.S. at 552. Under this standard, “[o]nly in the most 

extreme of cases would disqualification on the basis of bias and prejudice be constitutionally 

required.” Williams v. Anderson, 460 F.3d 789, 814 (6th Cir. 2006). 

Petitioner here has failed to overcome the heavy presumption of impartiality. As the 

People noted, record does not reveal that the trial judge's conduct or rulings denied Petitioner a 

fair trial: 

The record in this case shows that the trial court simply ruled on the 

People’s objections to counsel’s questions about Davenport’s financing of his real 

estate business, reporting of his income for tax purposes, and titling of assets. The 

court had to hold sidebars and hearings outside the presence of the jury because 

defense counsel continued to argue after the court had ruled. 4/22, 154-157, 167-

172. The court instructed counsel on the procedure to use when refreshing 

Davenport’s recollection and impeaching him with his prior testimony and 

statements, and held a sidebar when counsel persisted in using an [sic] a different 

procedure. 4/22, 163-166; 4/26, 11-13, 31, 38-40, 44-45; 4/27, 27-30. The court 

similarly instructed counsel to follow the procedure during his cross-examination 

of Unique Webster. 4/28, 41-45. Finally, the court ruled on other objections, and 

held hearings outside the presence of the jury when necessary to make informed 

evidentiary rulings. 4/26, 5-6, 8-10; 8/27, 20-21; 4/28, 172-182. 

The court’s comments and rulings, when considered in the context of the 

lengthy trial, in no way suggested that it was biased in favor of the People. No 

likelihood exists that the court’s conduct influenced the jury, let alone that it 

unduly influenced the jury so as to deny defendant a fair trial. [People’s brief 

dated 2/28/06, pp 10-17, Michigan Supreme Court No. 130756] 

For the reasons by the People in the state appellate courts and by the Michigan Court of 

Appeals in its 2/7/06 opinion, Petitioner has failed to demonstrate a violation of his federal 

constitutional rights. Because the Michigan Court of Appeals' determination was neither 

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contrary to nor an unreasonable application of clearly established Supreme Court precedent, 

habeas relief is not warranted. 

 

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Argument III

Petitioner's remaining claims are procedurally defaulted or without merit 

and habeas relief is not warranted on these claims. 

In his fourth habeas claim, Petitioner alleges that the trial court abused its discretion and 

violated Petitioner's constitutional rights by allowing the state to introduce evidence without 

laying a proper foundation. In his fifth habeas claim, Petitioner alleges that the trial court erred 

and that his right to confrontation was violated where the trial court allowed codefendant 

Whitman's statements to be heard via Sergeant Abdella. In his sixth habeas claim, Petitioner 

alleges that his constitutional rights were violated at sentencing where his sentencing guidelines 

were scored based on facts which the prosecutor had not charged, and which had not been 

submitted to the jury or admitted by Petitioner; Petitioner cites to Blakely v. Washington, 542 

U.S. 296 (2004) to support this claim. These claims are procedurally defaulted. 

Federal habeas review is barred where a state court declined to address a prisoner's 

federal claims because the prisoner failed to meet state procedural requirements. In such cases, 

the state court judgment rests on independent and adequate state procedural grounds. 

Wainwright v. Sykes, 433 U.S. 72 (1977); Harris v. Reed, 489 U.S. 255 (1989); Coleman v. 

Thompson, 501 U.S. 722 (1991). 

 Here, Petitioner’s fourth, fifth, and sixth habeas claims are procedurally defaulted 

because Petitioner raised these claims for the first time in his motion for relief from judgment. 

The Michigan Court of Appeals denied Petitioner's delayed application for leave to appeal the 

denial of his motion for failure to establish grounds for relief pursuant to M.C.R. 6.508(D). 

Likewise, the Michigan Supreme Court denied Petitioner's application for leave to appeal 

because he failed to meet his burden of establishing entitlement to relief under M.C.R. 6.508(D). 

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 For a claim to be procedurally defaulted on the basis of a state procedural rule the 

petitioner must have violated a procedural rule and the state court must have also based its 

decision on the procedural default. Simpson v. Jones, 238 F.3d 399 (6th Cir. 2000). If a state 

prisoner defaults his federal claims in state court in a decision based on an independent and 

adequate state procedural rule, those claims cannot be reviewed in a habeas proceeding. Coe v. 

Bell, 161 F.3d 320 (6th Cir. 1998). In order for the procedural default doctrine to apply, the last 

state court rendering a judgment in the case must have based its judgment on the procedural 

default. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). 

 Here, the Michigan Court of Appeals and Michigan Supreme Court, the last state courts 

rendering a judgment in the case, based their decisions to deny Petitioner's applications for leave 

to appeal the trial court's denial of his motion for relief from judgment on Petitioner's failure to 

comply with M.C.R. 6.508(D).6

 While the judgments were brief, they were based on an 

independent and adequate state procedural rule: Petitioner's procedural default of failing to raise 

these claims in his appeal of right. Since the Michigan Court of Appeals and Michigan Supreme 

Court were the last state courts rendering judgments in this case, their decisions denying 

Petitioner's claims on the basis of a state procedural bar prevents federal habeas review. 

Simpson, 238 F.3d at 407 ("While the judgment [referencing MCR 6.508(D)] was brief, it was 

based on an independent and adequate state procedural rule."); see also Alexander v. Smith, __ 

F.3d __, 2009 U.S. App. LEXIS 3532, 2009 WL 426261, *6 (6th Cir. Feb. 20, 2009)(Confirming 

that Simpson is binding precedent). 

When a petitioner defaults on his "federal claims in state court pursuant to an 

independent and adequate state procedural rule, federal habeas review of the claims is barred 

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unless the prisoner can demonstrate cause for the default and actual prejudice . . . or demonstrate 

that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman 

v. Thompson, 501 U.S. 722, 750 (1991). Petitioner has the burden of showing cause and 

prejudice to overcome a procedural default. Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999) 

(citing Coleman, 501 U.S. at 754). 

To the extent that Petitioner, in his third habeas claim, attempts to establish cause to 

excuse his default by claiming that his appellate counsel was ineffective for failing to raise these 

claims in his direct appeal, he does not do so. Attorney error will not constitute adequate cause 

to excuse a procedural default unless it amounts to constitutionally ineffective assistance of 

counsel under the criteria established in Strickland v. Washington, 466 U.S. 668 (1984).7

 

The mere failure to raise a claim even if meritorious on appeal does not constitute 

ineffective assistance of appellate counsel sufficient to establish cause to excuse a procedural 

default. Rust v. Zent, 17 F.3d 155 (6th Cir. 1994). It is well-established that appellate counsel is 

not required to raise every nonfrivolous issue. Jones v. Barnes, 463 U.S. 745, 751 (1983). 

Tactical decisions regarding issues on appeal “are properly left to the sound professional 

 6

 M.C.R. 6.508(D) form order is invocation of procedural default. Luberda v. Trippett, 211 F.3d 

1004 (6th Cir. 2000). 

7

 The Sixth Amendment right to counsel and the right to effective assistance of counsel protect 

the fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668 (1994). To show that 

he was denied the effective assistance of counsel under federal constitutional standards, 

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

fell below the objective standard of reasonableness and that a reasonable probability exists that, 

but for counsel’s conduct, the result would have been different. Strickland, 466 U.S. at 669, 694. 

Judicial scrutiny of counsel’s performance must be highly deferential. Courts presume that an 

attorney is competent and the burden rests upon the defendant to show a constitutional violation. 

United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995). A strong presumption exists that 

counsel’s behavior lies within the wide range of reasonable professional assistance. O’Hara v. 

Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). A petitioner must also overcome the presumption 

that under the circumstances, the challenged action might be considered sound trial strategy. 

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judgment of counsel.” United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1985). An accused does 

not have a constitutional right to have his counsel press nonfrivolous points requested by his 

client if counsel decides as a matter of professional judgment not to press these points. Brown v. 

Foltz, 763 F.2d 191, 194 n 4 (6th Cir. 1985). In Smith v. Robbins, 520 U.S. 259, 288 (2000), the 

United States Supreme Court stated: 

In Jones v. Barnes, 463 U.S. 745 [parallel citations omitted] (1983), we held that 

appellate counsel who files a merits brief need not (and should not) raise every 

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

the likelihood of success on appeal. Notwithstanding Barnes, it is still possible to 

bring a Strickland claim based on counsel’s failure to raise a particular claim, but 

it is difficult to demonstrate that counsel was incompetent. See, e.g., Gray v. 

Greer, 800 F.2d 644, 646 (C.A. 7 1986)(“Generally, only when ignored issues are 

clearly stronger than those presented, will the presumption of effective assistance 

of counsel be overcome”) 

See also McMeans v. Brigano, 228 F.3d 674 (6th Cir. 2000)(Where claim was not “dead bang 

winner,” Petitioner’s appellate counsel’s failure to raise it on direct appeal did not constitute 

cause to excuse procedural default). 

In this case, the record reveals that Petitioner’s appellate attorney raised several claims on 

direct appeal but that his convictions were ultimately affirmed. Petitioner has failed demonstrate 

that the issues that were allegedly ignored by appellate counsel on direct appeal were clearly 

stronger than those that were presented and he has failed to overcome the strong presumption 

that his appellate counsel was competent. Since Petitioner has failed to establish cause for his 

procedural default, there is no need to determine whether Petitioner can meet the prejudice prong 

of the "cause and prejudice" test. Smith v. Murray, 477 U.S. 527 (1986); Long v. McKeen, 722 

 

Strickland, 466 U.S. at 689. The Strickland Court cautioned that courts must take care to avoid 

second-guessing strategic decisions that did not prove successful. Strickland, 466 U.S. at 694. 

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F.2d 286 (6th Cir. 1983). Petitioner also cannot show a fundamental miscarriage of justice.8

 

Because Petitioner has failed to meet his burden of establishing cause and prejudice for his 

procedural default, and because he has failed to establish a showing of a fundamental 

miscarriage of justice, review of his fourth, fifth, and sixth habeas claims is precluded. These 

claims are indeed without merit for the reasons set forth by the trial court's opinion dated 

4/16/07. 

 To the extent that Petitioner alleges in his seventh habeas claim that he should have been 

appointed counsel on direct appeal, Petitioner was in fact appointed counsel on direct appeal. 

(See claim of appeal and order appointing counsel, Court of Appeals No. 256497) Petitioner has 

failed to show that he had a right to appointed counsel in his post-conviction proceedings. 

 

8

 A petitioner may overcome a procedural default in the absence of "cause and prejudice" upon a 

showing of actual innocence. Lott v. Coyle, 261 F.3d 594, 620 (6th Cir. 2001), citing Schlup v. 

Delo, 513 U.S. 298, 314-315 (1995), and Herrera v. Collins, 506 U.S. 390, 417 (1993). The 

fundamental miscarriage of justice exception applies in the extraordinary case where the habeas 

petitioner demonstrates that the alleged constitutional error probably resulted in the conviction of 

one who is actually innocent of the underlying offense. Dretke v. Haley, 541 U.S. 386, 388 

(2004); Murray v. Carrier, 477 U.S. 478, 496 (1986)(Emphasis added) "'[A]ctual innocence' 

means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 

623 (1998). "To be credible, [a claim of actual innocence] requires [the] petitioner to support his 

allegations of constitutional error with new reliable evidence—whether it be exculpatory 

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not 

presented at trial." Schlup, 513 U.S. at 324. "[T]he petitioner must show that it is more likely 

than not that no reasonable juror would have convicted him in the light of the new evidence." 

Schlup, 513 U.S. at 327. In other words, the petitioner must show "that more likely than not any 

reasonable juror would have reasonable doubt." House v. Bell, 126 S.Ct. 2064, 2077 (2006). 

Petitioner has made no such showing here. 

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Conclusion

For all of the foregoing reasons, Respondent asks that this Honorable Court deny 

Petitioner habeas relief. Respondent also opposes any request for discovery, evidentiary 

hearings, bond, oral argument, or any other relief. 

 Respectfully submitted, 

 MICHAEL A. COX 

 Attorney General 

 s/Raina I. Korbakis

 Assistant Attorney General 

Appellate Division 

P.O. Box 30217 

Lansing, MI 48909 

 (517) 373-4875 

 korbakisr@michigan.gov 

 (P49467) 

Dated: April 1, 2009 

AG20083030127A/Hill.Answer 4-1-09 

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Certificate of Service 

I hereby certify that on April 1, 2009, I electronically filed the foregoing papers with the 

Clerk of the Court using the ECF system which will send notification of such filing to the 

following: 

HONORABLE JOHN CORBETT O'MEARA 

MAGISTRATE JUDGE MONA K. MAJZOUB 

 

and I hereby certify that Cindy Tessman has mailed by United States Postal Service the papers to 

the following non-ECF participant: 

ASKIA HILL #331718 

CARSON CITY CORRECTIONAL FACILITY 

10522 BOYER ROAD 

CARSON CITY, MI 48811 

 MICHAEL A. COX 

 Attorney General 

 s/Raina I. Korbakis

Assistant Attorney General 

 Appellate Division 

 P.O. Box 30217 

 Lansing, MI 48913 

 (517) 373-4875 

 korbakisr@michigan.gov 

 (P49467) 

 

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