UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TRENT BELLAMY, #588480,

Petitioner,

CASE NO. 2:08-CV-14537

v. HONORABLE ANNA DIGGS TAYLOR

THOMAS K. BELL,

Respondent.

 /

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS

CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

I. Introduction

Michigan prisoner Trent Bellamy (“Petitioner”) has filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of 10 counts of armed

robbery, Mich. Comp. Laws § 750.529; one count of assault with intent to rob while armed,

Mich. Comp. Laws § 750.89; one count of assault with intent to commit murder, Mich. Comp.

Laws § 750.83; one count of second-degree criminal sexual conduct, Mich. Comp. Laws §

750.520c; and eight counts of possession of a firearm during the commission of a felony, Mich.

Comp. Laws § 750.227b. He was sentenced to concurrent terms of 17 years six months to 80

years imprisonment for five of the armed robbery convictions, 18 years nine months to 80 years

imprisonment for the other five armed robbery convictions, 23 years nine months to 80 years

imprisonment on each of the two assault convictions, 8 years 3 months to 15 years imprisonment

on the criminal sexual conduct conviction, and two years imprisonment on each of the felony

firearm convictions, to be served concurrently to each other but consecutively to the other
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sentences. In his pleadings, Petitioner asserts that he was denied the effective assistance of

counsel at trial. For the reasons set forth herein, the Court denies the petition for a writ of habeas

corpus. The Court also denies a certificate of appealability.

II. Facts and Procedural History

Petitioner’s convictions arise from nine armed robberies which occurred in Macomb

County, Michigan between January 30, 2005 and April 7, 2005. The first robbery occurred on

January 30, 2005, at the Blue Dog Party Place in Chesterfield Township. The two employees

working at the time testified that an African-American man wearing a white painter’s mask and

dark clothing robbed the store at gunpoint and forced them to count to 200 in the backroom.

Petitioner confessed to this crime in detail. He was convicted of two counts of armed robbery

and one count of felony firearm for this incident.

The second robbery occurred on February 10, 2005, at the Card 23 Party Mart in

Macomb. The employee testified that a man wearing a white painter’s mask robbed the store at

gunpoint and forced him to face the ground and count to 200. Petitioner confessed to this crime,

providing specific details and noting that the painter’s mask was his “trademark.” He was

convicted of one count of armed robbery and one count of felony firearm for this incident.

The third robbery occurred on February 15, 2005, at Frank’s Liquor in Sterling Heights.

The owner testified that an African-American man wearing a white painter’s mask and dark

clothing robbed the store while indicating that he had a gun in his pocket. The man forced the

owner and her two children into the backroom and instructed them to count to 200. Petitioner

confessed to this crime in detail. He was convicted of one count of armed robbery for this

incident.
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The fourth robbery occurred on February 28, 2005, at the Finesse Liquor Store in

Warren. An employee testified that an African-American man wearing a white mask and dark

clothing robbed the store at gunpoint. Petitioner confessed to this crime in specific detail. 

Petitioner was convicted of one count of armed robbery and one count of felony firearm for this

incident. 

The fifth robbery occurred on March 1, 2005, at the Passport Pizza in Chesterfield

Township. Employees testified that an African-American man wearing a white dust mask and a

dark blue sweatshirt robbed the store at gunpoint and forced them to count to 500 in the

bathroom. Petitioner confessed to this crime in detail. He was convicted of two counts of armed

robbery and one count of felony firearm for this incident. 

The sixth robbery occurred on March 2, 2005, at a Subway in Sterling Heights. An

employee identified Petitioner as the perpetrator. She testified that Petitioner wore a white dust

mask and dark clothing. She further testified that Petitioner forced her into the backroom at

gunpoint, fondled her sexually, and told her to not to move while he left the store. Petitioner

confessed to this crime. He was convicted of one count of armed robbery, one count of seconddegree criminal sexual conduct, and two counts of felony firearm for this incident. 

The seventh robbery also occurred on March 2, 2005, at the Big Valley Foods in Sterling

Heights. The store owner identified Petitioner at trial. He testified that Petitioner wore a light

blue painter’s mask and a blue sweatshirt. The owner further testified that Petitioner attempted

to rob the store, but the owner fled the store and Petitioner fired gunshots at him. Petitioner

confessed to this crime. He was convicted of one count of assault with intent to rob while

armed, one count of assault with intent to murder, and two counts of felony firearm for this
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incident.

The eighth robbery occurred on April 7, 2005, at a Tubby’s Submarine Shop in Warren.

Two employees testified that an African-American man wearing a dust mask or surgical mask

informed them that he was armed and robbed the store. One of the employees identified

Petitioner in court. Petitioner confessed to the crime. Petitioner was convicted of one count of

armed robbery for this incident.

The ninth robbery also occurred on April 7, 2005, at the Aloha Tanning in Clinton

Township. Two employees testified that a man wearing a dust mask implied that he was armed

and robbed the store. One of the employees provided a description of the perpetrator’s car to the

police. Petitioner was arrested approximately three hours later driving a car matching the

employee’s description. Police found a dark blue sweatshirt, an envelope from Tubby’s

Submarine Shop, and two dust masks in Petitioner’s car. Petitioner confessed to this crime. He

was convicted of one count of armed robbery for this incident.

On the morning of April 8, 2005, Petitioner was interrogated by several police officers.

Detective Furno and Sergeant Dunn from the Clinton Township Police Department, with

Detective Dowell from the Chesterfield Township Police Department, questioned Petitioner

during an initial interview. Petitioner denied committing the crimes at first, but confessed to the

robberies in detail after a few hours. The interrogation and confession were tape-recorded, but

the audio was low quality and inaudible. Later that same day, Petitioner provided a videotaped

confession in the presence of different officers.

Before trial, defense counsel did not oppose the prosecutor’s motion to join all 21

charges of the nine robberies into one trial. Defense counsel, however, did move to suppress
1

People v. Walker, 374 Mich. 331 (1965).

2

People v. Ginther, 390 Mich. 436 (1973).

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Petitioner’s initial confession. The trial court conducted a Walker hearing1 to resolve the motion. 

At that hearing, Detectives Furno and Dowell testified that Petitioner’s confession was voluntary

and not the result of coercion. Defense counsel attempted to establish that the detectives had

coerced Petitioner into confessing through threats, intimidation, and the denial of food and water. 

The recording of the first interrogation was not played for the trial court, as defense counsel had

not yet listened to the statements on the recording. The detectives’ specific statements were not

admitted at the hearing. Petitioner testified that the detectives forced him to give the confession.

At the conclusion of the hearing, the trial court held that the confession was voluntary and

admissible. Petitioner’s statements to the police were subsequently admitted at trial.

During trial, defense counsel attempted to call Petitioner’s girlfriend, Alicia Buzdygan, as

an alibi witness. Shortly after Buzdygan began testifying, the prosecutor objected once she

realized Buzdygan’s purpose. The trial court upheld the objection and prohibited Buzdygan

from testifying because defense counsel had failed to provide the proper statutory alibi notice. 

On the day the trial concluded, defense counsel discovered that Petitioner had filed a

grievance against him. Defense counsel revealed this information to the court and Petitioner

stated that he intended to hire new counsel for sentencing. Petitioner apparently made no

attempt to do so, however, and the same attorney represented him at sentencing. The grievance

was subsequently dismissed.

Following his convictions and sentencing, Petitioner moved for a remand in the Michigan

Court of Appeals requesting a Ginther hearing2

 to address allegations of ineffective assistance of
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trial counsel. The motion was granted and the trial court held a hearing. At that hearing, defense

counsel testified that he had multiple pre-trial discussions with Petitioner about calling Alicia

Buzdygan as an alibi witness. While Petitioner provided some information about the alibi, he

did not provide defense counsel with any details at that time. In fact, defense counsel did not

receive the necessary information (such as the date of the alibi) from Petitioner or Buzdygan

until the day he attempted to call her as a witness.

Defense counsel also testified that he did not oppose the prosecutor’s motion to

consolidate the charges because he intended to highlight the factual differences between the

armed robberies to the jury. Defense counsel also believed that evidence of all nine robberies

would have been admitted against Petitioner under Michigan Rule of Evidence 404(b), such that

multiple trials would have merely increased Petitioner’s chances of being convicted.

Defense counsel further testified that he did not withdraw as Petitioner’s attorney during

trial or before sentencing because he did not believe a conflict of interest existed. Although

counsel was aware of Petitioner’s grievance at the conclusion of trial, he believed that his ability

to represent Petitioner was not impaired. Defense counsel also stated that he adequately

represented Petitioner at sentencing.

Lastly, defense counsel testified that he did not move to admit the audiotape of the first

police interrogation at the Walker hearing because it was inaudible. After some difficulty, the

recording was transcribed by a court reporter during the hearing. The relevant statement by

Detective Furno was as follows:

Detective Furno: Let me tell you what buddy, once I call the State today or the

Federal government wherever is the distribution that Medicaid check to you, your

house is gone. Okay. Your ma, listen, not only are you affecting yourself right now,

you’re cutting off the aid that is coming to your house because it’s against the law
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to have a guy charged with a felony receiving federal aid. Okay. Your money is

gone. You need to keep yourself out of the can as long as you can here because right

now I could probably keep you locked up for the next 20 years with all the Macomb

County cases, maybe more. Okay. You better start thinking about your ma and you

better start thinking about it when I go over her house today with a search warrant.

I throw her out and I let her make a phone call whoever is going to pick her up and

take care of her and I evict her from her house and me and four other police

departments from Macomb County tear that house to living shreds because when

we’re done with it, it’s not going to be in livable condition.

Defense counsel stated that he would have introduced Detective Furno’s statements at the

Walker hearing or during cross-examination of Detective Furno at trial if the recording had been

audible. Defense counsel opined that Detective Furno’s statements undermined the prosecution’s

claim that Petitioner’s confession was voluntary. Following the hearing, the trial court

concluded that trial counsel was not ineffective.

Petitioner filed an appeal of right with the Michigan Court of Appeals, presenting the

following claims:

I. Did defendant-appellant receive the effective assistance of counsel at trial

due to counsel’s failure to adequately investigate potential defenses or

evidentiary matters, failure to adequately impeach a key witness, failure to

notify the prosecution of an alibi witness, failure to object to the

prosecution’s motion to consolidate charges, and failure to move to

withdraw as counsel when a breakdown of the attorney-client relationship

occurred?

II. Did the trial court err by granting the prosecution’s motion to consolidate

the cases prior to trial, which caused substantial prejudice to the

defendant?

III. Did the trial court err by refusing to allow the testimony of an alibi

witness despite the fact that defense counsel did not comply with the

statutory notice requirements where the defendant was substantially

prejudiced by the absence of this evidence? 

The Michigan Court of Appeals affirmed Petitioner’s convictions. People v. Bellamy,

No. 268462 (Mich. Ct. App. Nov. 29, 2007) (unpublished). The Michigan Supreme Court
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denied leave to appeal in a standard order. People v. Bellamy, 480 Mich. 1188 (2008).

Petitioner thereafter filed his federal habeas petition asserting the following claims of

ineffective assistance of trial counsel:

I. Failure to adequately investigate potential defenses or evidentiary matters.

Failure to impeach a key witness.

II. Failure to adequately investigate and present the alibi defense at trial.

III. Failure to object to the prosecution’s motion for joinder of the charges.

IV. Failure to move to withdraw during trial.

Respondent has filed an answer to the habeas petition contending that it should be denied

for lack of merit.

III. Standard of Review

Petitioner’s claims are reviewed against the standard imposed by 28 U.S.C. § 2254 as 

amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

110 Stat. 1214 (“AEDPA”):

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 State court proceedings.

An “unreasonable application” of federal law occurs when “a state-court decision

unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Williams

v. Taylor, 529 U.S. 362, 409 (2000). Possible error by the state court is not sufficient to justify
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granting the habeas petition; the state court’s application of federal law “must have been

objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). In other words, a

federal court may issue the writ only if the state court incorrectly applied clearly established

federal law and the state court’s application of federal law was unreasonable. Williams, 529 U.S.

at 409-11. Additionally, this Court must presume the correctness of state court factual

determinations. 28 U.S.C. § 2254(e)(1).

IV. Analysis 

Petitioner asserts that trial counsel was ineffective for failing to sufficiently investigate his

audio-recorded confession and cross-examine Detective Furno, for failing to adequately

investigate and present an alibi defense, for failing to object to the joinder of the charges into one

trial, and for failing to move to withdraw during trial. Respondent contends that Petitioner’s

claims lack merit and do not warrant federal habeas relief.

In Strickland v. Washington, 466 U.S. 668, 687 (1984), the United States Supreme Court

set forth a two-pronged test for determining whether a habeas petitioner received the ineffective

assistance of counsel. First, a petitioner must prove that counsel’s performance was deficient. 

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

counsel guaranteed under the Sixth Amendment. Id. at 687. Second, the petitioner must establish

that counsel’s deficient performance prejudiced the defense. Counsel’s errors must have been so

serious that the errors deprived the petitioner of a fair trial or appeal. Id.

With respect to the first prong, a petitioner must identify acts that were “outside the wide

range of professionally competent assistance” in order to prove deficient performance. Id. at 690. 

The reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at 689. The
3

The Court notes that Petitioner does not raise a distinct claim that he is entitled to habeas

relief because his initial confession was involuntary. The Court shall therefore limit its

discussion to defense counsel’s conduct in investigating the audio-recording and questioning

Detective Furno. The Court notes, however, that coercion is but one factor in determining

voluntariness. See, e.g., Withrow v. Williams, 507 U.S. 680, 693-94 (1993) (other factors

include length, location, continuity of interrogation, suspect’s maturity, education, physical and

mental condition, and whether the suspect was advised of his rights).

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court must recognize that counsel is strongly presumed to have rendered adequate assistance and

made all significant decisions within reasonable professional judgment. Id. at 690. The petitioner

bears the burden of overcoming the presumption that the challenged actions might be considered

sound trial strategy. Id. at 689. Moreover, defense counsel cannot be deemed deficient for failing

to make a meritless or otherwise futile objection or motion. See Ludwig v. United States, 162

F.3d 456, 459 (6th Cir. 1998); McQueen v. Scroggy, 99 F.3d 1302, 1328 (6th Cir. 1996). 

To satisfy the second prong under Strickland, a petitioner must show that “there is a

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

would have been different.” Id. at 694. A reasonable probability is one that is sufficient to

undermine confidence in the outcome. Id. “On balance, the benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct . . . undermined the proper functioning of the

adversarial process that the [proceeding] cannot be relied on as having produced a just result.” 

Strickland, 466 U.S. at 686.

With this standard in mind, the Court will review each of Petitioner’s specific claims of

ineffective assistance of trial counsel.

A. Audio-Recorded Confession

Petitioner first asserts that trial counsel was ineffective for failure to investigate his initial

audio-recorded confession and impeach Detective Furno about his conduct during the interview.3
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The Michigan Court of Appeals denied relief on this claim, stating as follows:

Defendant contends that defense counsel was ineffective for failing to thoroughly

investigate his initial interview with the police and to impeach Detective William

Furno with evidence that he threatened defendant during the interview. Defendant

argues that had defense counsel listened to the audio recording of his police interview,

counsel would have heard Detective Furno threaten to cut off defendant's Medicaid

payments, throw his mother out of her home, and "tear that house to living shreds" if

he did not cooperate. Defense counsel testified at a Ginther hearing that he attempted

to listen to the recording, but that it was of such poor quality that he was unable to

hear anything on the audiotape. The prosecutor concedes that defense counsel should

have made efforts to obtain a clearer recording. Nonetheless, we find that defendant

cannot show prejudice resulting from counsel's failure to impeach Detective Furno

considering the overwhelming evidence presented at trial establishing defendant's

identity as the perpetrator.

During each of the incidents giving rise to the charges against defendant, the

perpetrator entered the business, announced the robbery, and demanded money,

oftentimes asking that the money be placed in a bag. The perpetrator frequently

required persons present to enter a room near the back of the establishment, lie down

on the floor, and count to a specified number before coming out. Additionally, he

often asked if there was a safe on the premises. Although most of the victims were

unable to identify the perpetrator after the incidents, three persons identified

defendant as the perpetrator at trial. In addition, the witnesses consistently described

the perpetrator as a tall African-American male with a slim build, soft spoken, and

wearing either a dark hooded sweatshirt or a denim jacket, gloves, a surgical or dust

mask, blue jeans or navy blue work pants, and either tennis shoes or work boots.

At the time of his arrest, shortly after the robberies at Tubby's Submarine Shop and

Aloha Tanning Salon, defendant was wearing a denim jacket and blue jeans.

Defendant's vehicle matched the description given from witnesses at Aloha Tanning

Salon and police officers found several items in the vehicle, including two dust masks,

a pair of gloves, a black knit hat, a large amount of money, a pair of tennis shoes, a

pair of boots, and the yellow envelope the perpetrator took from Tubby's Submarine

Shop. Further, when defendant confessed to the robberies, he claimed that the dust

mask was his trademark and provided details of the incidents that he would not have

otherwise known. Considering the overwhelming evidence against defendant, it is not

reasonably probable that defense counsel’s failure to listen to the audiotape of

defendant's interview and impeach Detective Furno affected the outcome of the case.

Bellamy, No. 268462 at *2-3 [citations omitted].

This ruling is neither contrary to Strickland nor an unreasonable application of federal law
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or the facts. Even assuming that trial counsel was deficient for failing to more fully investigate

and challenge the audio-recorded confession to the jury, Petitioner’s claim cannot succeed

because he cannot demonstrate the prejudice required under Strickland. In the confession,

Petitioner related several specific facts the robberies. For example, when confessing to the

robbery of the Aloha Tanning Salon, Petitioner stated that there were two girls working at the

salon at the time; that he wore a black hat and a dust mask; that he drove west on Cass and north

on Romeo Plank; and that he was followed by a white GMC Yukon. These specific details were

corroborated by witnesses and were not released to the general public. Petitioner’s knowledge of

these details is heavily incriminating evidence, as only a person actually at the scene of the crime

could have related this information. See McCray v. Metrish, 232 F. App’x 469, 474-75 (6th Cir.

2007) (stating that a “full confession” providing details surrounding the crime is much more

probative than a simple statement relating no details of the crime). Thus, presenting Detective

Furno’s statements to the jury would have had a minimal impact on the credibility on the

confession itself.

Moreover, in light of the overwhelming evidence of Petitioner’s guilt, including

identifications by three victims, Petitioner cannot show that but for a more thorough investigation

of the audio-recording or a more rigorous cross-examination of Detective Furno, the result of the

trial would have been different. Petitioner’s guilt was well-established through multiple pieces of

physical evidence, multiple in-court identifications, a consistent modus operandi, as well as his

own statements. Petitioner also later confessed to the armed robberies on videotape when

Detective Furno was not present. Given such circumstances, Petitioner cannot establish that he

was prejudiced by counsel’s conduct in this regard. Habeas relief is not warranted on this claim.
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B. Alibi Witness

Petitioner next asserts that trial counsel was ineffective for failure to present Petitioner’s

girlfriend, Alicia Buzkygan, as an alibi witness for one of the robberies. Michigan law requires

that a criminal defendant who intends to call an alibi witness provide notification to the court and

the prosecution at least 10 days before the start of trial. See Mich. Comp. Laws § 768.20. 

Defense counsel in this case did not provide the requisite notice and the trial court refused to

allow Petitioner’s girlfriend to testify as an alibi witness during the trial.

The Michigan Court of Appeals denied relief on this claim, stating in relevant part:

Defendant next contends that counsel was ineffective for failing to investigate and

present an alibi defense. Defendant maintains that because counsel did not provide

him with a complete discovery package until trial began, he was unable to assist in

preparing his defense and was unaware until the first day of trial that his girlfriend,

Alicia Buzdygan, could testify as an alibi witness regarding the armed robbery at Card

23 Party Mart. We find, however, that the record belies defendant's assertion.

At the Ginther hearing, defense counsel testified that he provided some discovery

materials to defendant while he was in jail and that they discussed the possibility of

Buzdygan testifying as an alibi witness before trial. According to counsel, he did not

file a notice of alibi because he did not have a sufficient basis to believe that an alibi

defense could be presented successfully. Counsel maintained that although he had

several discussions with defendant regarding the prospect of Buzdygan testifying,

defendant did not inform him until the day before Buzdygan attempted to testify that

he wanted her to do so. Counsel further testified that Buzdygan was not absolutely

certain that defendant was with her on the day of the Card 23 robbery until the time

of her testimony. Accordingly, we find that counsel's failure to provide defendant with

all of the discovery materials before trial had no bearing on whether defendant

presented an alibi defense. Thus, counsel was not ineffective for failing to file a notice

of alibi and to present such a defense. 

Bellamy, No. 268462 at *3.

The Michigan Court of Appeals’ decision is is neither contrary to clearly established

federal law nor an unreasonable application of the law or the facts. Petitioner has not established

that trial counsel’s conduct was unreasonable or prejudicial. Although there was some discussion
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of calling Alicia Buzdygan as an alibi witness prior to trial, Petitioner and/or the witness delayed

informing defense counsel of the necessary information until the time of trial. Given this delay,

defense counsel did not act unreasonably by failing to file the required alibi notice. See Cooper v.

Warren, No. 08-CV-10868, 2010 WL 716323, *12 (E.D. Mich. Feb. 18, 2010) (holding that

defense counsel was not deficient for failure to timely notify the court of an alibi witness when

the defendant provided the necessary information on the first day of trial). Moreover, trial

counsel attempted to use Buzdygan as an alibi witness despite the lack of sufficient notice, which

shows that counsel acted as an aggressive advocate on Petitioner’s behalf.

In addition, Petitioner cannot show a reasonable probability that the outcome of the trial

would have been different if defense counsel had presented his girlfriend as an alibi witness for

one of the nine similar robberies. As discussed, the evidence presented against Petitioner at trial

was overwhelming. Presenting one interested alibi witness for one of the robbery dates could not

have overcome the substantial physical, eyewitness, and circumstantial evidence linking

Petitioner to the robberies in question. Habeas relief is not warranted on this claim. 

C. Joinder of Charges

Petitioner next asserts that trial counsel was ineffective for failing to oppose the

prosecution’s motion for joinder of all the charges in one trial. The Michigan Court of Appeals

denied relief on this claim, stating:

Defendant also argues that counsel was ineffective for failing to object to the

prosecutor's motion for joinder of the charges. We find, however, for the reasons

discussed infra, that the trial court properly granted the prosecutor's motion.

Moreover, counsel's decision not to oppose the motion was a matter of trial strategy

and we do not substitute our judgment for that of counsel in matters of trial strategy.

Counsel testified that after reviewing the police reports and witness statements, his

strategy was to highlight the differences in the offenses and establish that the same

person could not have committed all of them. Counsel expressed concern that even
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if the offenses were tried separately, the prosecutor may have prevailed on an MRE

404(b) motion to admit evidence of the other incidents, and opined that it was

preferable for the jury to focus on all of the incidents at a single trial. Based on the

record before us, we find that counsel exercised sound trial strategy in determining

whether to oppose the prosecutor's motion for joinder. The fact that counsel's strategy

ultimately failed does not render his representation ineffective.

Bellamy, No. 268462 at *3 [citations omitted].

The Michigan Court of Appeals’ ruling is neither contrary to clearly established federal

law nor an unreasonable application of the law or the facts. This Court has not found any

Supreme Court cases holding that a defendant in a criminal case has a constitutional right to a

separate trial on each of the charges against him. See Rodriguez v. Jones, 625 F. Supp. 2d 552,

560-61 (E.D. Mich. 2009). To be sure, the United States Supreme Court has stated that

“consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best

promotes justice, economy, and convenience.” Ashe v. Swenson, 397 U.S. 436, 454 (1970)

(Brennan, J., concurring). Joinder “has long been recognized as a constitutionally acceptable

accommodation of the defendant's right to a fair trial.” Herring v. Meachum, 11 F.3d 374, 377

(2d Cir. 1993). On habeas review of state court convictions, the question is not whether the

joinder of charges or the refusal to sever counts for separate trials violated a state procedural rule,

but is whether the petitioner was denied due process of law under the Fourteenth Amendment. 

See Davis v. Coyle, 475 F.3d 761, 777 (6th Cir. 2007) (citing Corbett v. Bordenkircher, 615 F.2d

722, 724 (6th Cir. 1980)). “Improper joinder does not, in itself, violate the Constitution. Rather,

misjoinder [constitutes] a constitutional violation only if it results in prejudice so great as to deny

a defendant his...right to a fair trial.” United States v. Lane, 474 U.S. 438, 446 n. 8 (1986); Davis,

475 F.3d at 777 (quoting Lane). In order to establish such prejudice, a petitioner must provide

specific evidence that joinder was prejudicial; “an unproven assertion is not compelling evidence
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of actual prejudice.” United States v. Saadey, 393 F.3d 669, 679 (6th Cir. 2005). Moreover,

jurors are “presumed capable of considering each count separately.” United States v. Cope, 312

F.3d 757, 781 (6th Cir. 2002).

For ineffective assistance of counsel claims arising from defense counsel’s lack of

objection to the joinder of charges, a habeas court applies the Strickland test. See, e.g., Raver v.

Brunsman, No. 08-3098, 2010 WL 2545489, *4-5 (6th Cir. June 21, 2010) (unpublished). In this

case, Petitioner has failed to establish that counsel erred and/or that he was prejudiced by trial

counsel’s conduct. First, counsel may have reasonably determined that a opposing the joinder of

the charges or seeking a severance would have been futile because the charges were sufficiently

related. Under Michigan law, severance is required “only when a defendant shows that it is

necessary to avoid prejudice to his substantial rights.” Clark v. McLemore, 291 F. Supp. 2d 535,

545 (E.D. Mich. 2003) (citing Mich. Ct. R. 6.120(C)). “[T]here is no absolute right to a separate

trial, and joint trials are strongly favored ‘in the interest of justice, judicial economy and

administration.’” Id. (quoting People v. Etheridge, 196 Mich. App. 43, 52, 492 N.W.2d 490

(1992)). Severance should only be granted “if there is a serious risk that a joint trial would

compromise a specific trial right of one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence.” People v. Hana, 447 Mich. 325, 359-60, 524

N.W.2d 682 (1994).

At the time of Petitioner’s trial, Michigan Court Rule 6.120 provided:

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

defendant with any two or more offenses. Each offense must be stated in a separate

count. Two or more informations or indictments against a single defendant may be

consolidated for a single trial.

(B) Right of Severance; Unrelated Offenses. On the defendant's motion, the court
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must sever unrelated offenses for separate trials. For purposes of this rule, two

offenses are related if they are based on

(1) the same conduct, or

(2) a series of connected acts or acts constituting part of a single scheme or

plan.

(C) Other Joinder or Severance. On the motion of either party, except as to

offenses severed under subrule (B), the court may join or sever offenses on the

ground that joinder or severance is appropriate to promote fairness to the parties

and a fair determination of the defendant's guilt or innocence of each offense.

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 charges or the complexity or nature of the evidence, the potential for

harassment, the convenience of witnesses, and the parties' readiness for trial.

Subject to an objection by either party, the court may sever offenses on its own

initiative.

Mich. Ct. R. 6.120 (prior to 2006 amendments).

In this case, the record indicates that the robberies were sufficiently similar and close in

time to be part of a single scheme or plan. Trial of the charges involved some of the same

witnesses and evidence and was more efficient for the parties and the court. Petitioner has not

shown that joinder was improper or that severance was required or would have been granted

under state law. He thus cannot establish that counsel was deficient for not opposing the joinder

of the charges. Defense counsel cannot be deemed ineffective for failing to make a futile motion. 

See McQueen, 99 F.3d at 1316.

Additionally, trial counsel stated that he believed joinder of the charges could benefit

Petitioner because the prosecutor would have only one chance for conviction instead of multiple

chances. Trial counsel further explained that his trial strategy was to expose differences between

the armed robberies and question how one person could have committed all of them in order to

create reasonable doubt at trial. Such a strategic decision was sound and this Court will not
4

Mich. R. Evid. 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in other to show action in conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act,

knowledge, identity, or absence of mistake or accident when the same is material, whether other such crimes,

wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case. 

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second-guess defense counsel on habeas review. The fact that counsel’s strategy was ultimately

unsuccessful does not mean that counsel was ineffective. See, e.g., Moss v. Hofbauer, 286 F.3d

851, 859 (6th Cir. 2002) (“an ineffective-assistance-of-counsel claim cannot survive so long as

the decisions of a defendant’s trial counsel were reasonable, even if mistaken”). Petitioner has

failed to demonstrate that trial counsel was deficient in this regard.

Petitioner has also failed to establish that he was prejudiced by trial counsel’s conduct. 

Under Michigan Rule of Evidence 404(b),4

 evidence of multiple offenses may be admitted against

a defendant to prove a single scheme or plan or to establish identity, even if the charged offenses

are severed into multiple trials. See People v. Williams, 483 Mich. 226, 234 (2009). Given that

the nine robberies occurred in the same county within a few months of each other, were

perpetrated by an African-American man wearing a painter’s mask, and were similar in other

respects, the trial court could have reasonably admitted some or all of the other robberies in each

trial against Petitioner as evidence of a common plan or scheme and to establish his identity as the

perpetrator. Consequently, Petitioner cannot show that he was prejudiced by counsel’s decision

not to oppose the joinder of the charges. See Krist v. Foltz, 804 F.2d 944, 947-48 (6th Cir. 1986)

(while joinder of two robbery counts may have been improper, similarity of the robberies and

their closeness in time would have made evidence of one crime admissible at separate trial of the

other such that petitioner was not prejudiced by counsel’s failure to seek severance); Woodruff v.

Lafler, No. 05-CV-74623-DT, 2007 WL 522704, *5-6 (E.D. Mich. Feb. 14, 2007) (habeas
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petitioner failed to show prejudice from counsel’s failure to seek severance where the acts would

have been cross-admissible).

Moreover, there was ample evidence against Petitioner to support his convictions as to

each count and he has not shown that he was prejudiced by having one trial on all of the charges

against him. Conclusory allegations, without evidentiary support, do not provide a basis for

habeas relief. See Cross v. Stovall, 238 F. App’x 32, 39-40 (6th Cir. 2007); Prince v. Straub, 78

F. App’x 440, 442 (6th Cir. 2003); Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998)

(conclusory allegations of ineffective assistance of counsel do not justify federal habeas relief);

see also Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (bald assertions and conclusory

allegations do not provide sufficient basis to hold an evidentiary hearing in habeas proceedings). 

Habeas relief is not warranted on this claim.

D. Withdrawal

Lastly, Petitioner asserts that trial counsel was ineffective for failing to withdraw during

the trial. The Michigan Court of Appeals denied relief on this claim, stating:

Defendant further contends that counsel was ineffective for failing to move to

withdraw during trial because of a conflict of interest. Defendant contends that there

was a breakdown of the attorney-client relationship, resulting in his filing of a

grievance against trial counsel. This Court has rejected the notion that the filing of a

grievance necessarily creates good cause for substituting counsel. Moreover, although

defendant expressed dissatisfaction with his attorney at times, counsel testified that

defendant seemed satisfied with his representation at other times. Counsel became

aware of defendant's grievance against him only after the jurors began their

deliberations. By the time counsel was able to discuss the matter with the trial court

and opposing counsel, the jury had already reached a verdict. Although there was

some discussion about defendant retaining a different attorney to represent him at

sentencing, defendant apparently did not do so. Counsel testified that he did not

withdraw as counsel because he felt that he could adequately represent defendant and

he did not believe that a conflict of interest existed. Counsel further testified that he

vigorously represented defendant at sentencing and did the best that he could.

Because defendant failed to prove any deficiency in counsel's performance, he cannot
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establish that he was prejudiced by counsel's failure to move to withdraw.

Bellamy, No. 268462 at *4 [citations omitted].

This decision is neither contrary to Supreme Court precedent nor an unreasonable

application thereof. A defendant is entitled to defense counsel free from a conflict of interest. See

Holloway v. Arkansas, 453 U.S. 475, 483-84 (1978). While a defendant ordinarily has the right to

choose his or her defense counsel, “the right to counsel of choice does not extend to defendants

who require counsel to be appointed for them.” United States v. Gonzalez-Lopez, 548 U.S. 140,

151 (2006). “An indigent defendant...must demonstrate ‘good cause’ to warrant substitution of

counsel.” United States v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990). Good cause includes “a

conflict of interest, a complete breakdown in communication or an irreconcilable conflict with

[the] attorney.” Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir. 1985). “[I]f the conflict is as to a

matter that is irrelevant or the conflict is merely hypothetical, there is no constitutional violation.”

Moss v. United States, 323 F.3d 445, 463-64 (6th Cir. 2003). A petitioner must identify specific

instances on the record which suggest an actual conflict. See Thomas v. Foltz, 818 F.2d 576, 481

(6th Cir. 1987).

Petitioner has failed to establish that defense counsel had a conflict of interest or was

otherwise unable to function as competent counsel. The mere filing of a grievance against

defense counsel does not create a conflict of interest. See Hunter v. Curtin, No. 07-CV-15049,

2009 WL 2386082, *9 (E.D. Mich. July 31, 2009). Furthermore, defense counsel did not receive

notice of the grievance until the end of trial. Consequently, the grievance could not have created

a conflict of interest during trial because defense counsel was not aware of the grievance at that

time. Petitioner has failed to establish an actual conflict of interest at trial. He has also failed to
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identify instances which suggest an actual conflict of interest at sentencing. At the Ginther

hearing, defense counsel testified that he advocated for Petitioner to the best of his abilities at trial

and sentencing. The fact that Petitioner decided against seeking different counsel for sentencing

indicates that he did not find counsel’s representation to be inadequate. Petitioner has failed to

establish that trial counsel had a conflict of interest or was otherwise ineffective for failing to

move to withdraw from representation. Habeas relief is not warranted on this claim. 

V. Conclusion

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

relief on the claims contained in this petition. Accordingly, the Court DENIES WITH

PREJUDICE the petition for a writ of habeas corpus.

Before Petitioner may appeal this decision, a certificate of appealability must issue. See

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

the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). When a district court rejects a habeas claim on the merits, the substantial showing

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

court’s assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529

U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by demonstrating that . . . jurists

could conclude the issues presented are adequate to deserve encouragement to proceed further.” 

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, a district court may

not conduct a full merits review, but must limit its examination to a threshold inquiry into the

underlying merit of the claims. Id. at 336-37. Having considered the matter, the Court concludes

that Petitioner has failed to make a substantial showing of the denial of a constitutional right as to
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his habeas claims. Accordingly, the Court DENIES a certificate of appealability.

IT IS SO ORDERED.

DATED: August 5, 2010 s/Anna Diggs Taylor

ANNA DIGGS TAYLOR

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order of Dismissal was served upon counsel of record via the Court's

ECF System to their respective email addresses or First Class U.S. mail disclosed on the Notice of Electronic Filing

on August 5, 2010.

Trent Bellamy, #588480 

Gus Harrison Correctional Facility 

2727 E. Beecher Street 

Adrian, MI 49221

s/Johnetta M. Curry-Williams

Case Manager