1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SHANNON HADLEY, 

 

Petitioner, Case Number 09-CV-10297 

 Honorable Mark A. Goldsmith 

v. 

SHIRLEE HARRY, 

Respondent. 

________________________________________/ 

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 

Petitioner, Shannon Hadley, presently confined at the Carson City Correctional Facility 

in Carson City, Michigan, has filed a pro se application for a writ of habeas corpus pursuant to 

28 U.S.C. ' 2254, challenging his convictions of armed robbery and possession of a firearm 

during the commission of a felony. Petitioner was found guilty of these crimes following a 

bench trial in the Wayne Circuit Court and was sentenced to 12-20 years for the armed robbery 

conviction and a consecutive two years for the firearm conviction. The petition asserts nine 

claims: (1) the trial court failed to suppress the in-court identification of Petitioner after a 

suggestive confrontation at the preliminary examination; (2) insufficient evidence was presented 

at trial to sustain Petitioner’s convictions; (3) the prosecutor failed to disclose fingerprint 

analysis results, and defense counsel was ineffective when he failed to move to dismiss the case 

based upon the prosecutor’s failure to produce this potentially exculpatory evidence; (4) 

Petitioner’s trial was rendered unfair by the erroneous admission of prior bad acts evidence under 

Michigan Rule of Evidence 404(B); (5) Petitioner was denied the effective assistance of counsel 

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by his attorney’s failure to investigate and move for a mistrial; (6) the prosecutor elicited false 

testimony from a witness; (7) the cumulative errors committed by the trial judge violated 

Petitioner’s state and federal due process guarantee to a fair and impartial trier of fact; (8) 

Petitioner is entitled to resentencing where his sentence was based upon uncounseled 

convictions; and (9) Petitioner has shown cause and prejudice to excuse any procedural defaults. 

The respondent filed an answer to the petition arguing that Petitioner=s claims were reasonably 

rejected by the state courts and that review of his claims is procedurally barred. The Court finds 

that none of Petitioner’s claims has merit. The Court will therefore deny the petition on that 

basis. 

I. Background 

At Petitioner’s bench trial, Charles Drake testified that he was at a self-service car wash 

on Michigan Avenue on the evening of December 28, 2002. While he was putting the finishing 

touches on his tires, a man tugged on his elbow and pointed a chrome-plated pistol at him. The 

man told Drake to give him money and his wallet or he would kill him. The man then took 

Drake’s wallet out of his pocket while holding the pistol down at his side. 

The man then told Drake to give him his car keys and, when Drake did, Petitioner threw 

them near a dumpster. Petitioner directed Drake to walk toward the street while he walked back 

towards the back of the car wash. Moments later, Drake heard a commotion on the corner. A 

man in the street identified himself as a police officer, and Drake told him he had just been 

robbed. Drake failed to identify anyone at a pretrial line-up procedure, but he identified 

Petitioner at the preliminary examination and at trial as the robber. 

Sgt. Odell Godbold testified that he was on surveillance duty near the carwash because 

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several robberies had occurred there. He saw an individual armed with a handgun approach a 

customer. The man with the gun pointed it at the customer, and Godbold saw the man place his 

hand in the customer’s pocket. As the perpetrator walked away, Godbold started to pursue him 

on foot. When the man was cornered by Godbold and another officer, Godbold saw him throw 

away the handgun and give himself up. Godbold identified Petitioner as the man who was 

arrested at the scene, and that Petitioner had remained in his eyesight from the time of the crime 

until the arrest. This testimony was corroborated by the testimony of other officers present at the 

scene. 

Petitioner testified in his own defense. He claimed that he had stopped on Michigan 

Avenue to urinate behind a vacant building when an officer arrested him. 

The trial court found Petitioner guilty of armed robbery and felony-firearm but acquitted 

him of the felon in possession of a firearm charge. The court found that the entire episode was 

observed by police officers – from the robbery to Petitioner’s arrest – and futher found the 

prosecution witnesses credible, while Petitioner’s testimony was not believable. 

The court subsequently sentenced Petitioner to 12-20 years imprisonment for the armed 

robbery conviction and a consecutive two years for the felony-firearm conviction. 

Petitioner filed a claim of appeal with the Michigan Court of Appeals, raising the 

following claims: 

I. Defendant was denied his due process right to a fair trial where the court denied 

his motion to suppress the in- court identification and allowed the complainant to 

identify him in court, despite the fact that he did not definitively identify him in a 

lineup, and where thereafter he viewed him at a suggestive confrontation at the 

preliminary examination. 

II. Defendant’s state and federal constitutional rights were violated when the 

evidence was insufficient when viewed in a light most favorable to the 

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prosecution and could not justify a reasonable person finding all the elements of 

the crime were established beyond a reasonable doubt 

. 

III. Defendant’s state and federal due process rights were violated when the 

fingerprint analysis was not turned over to defense counsel and defense counsel 

was ineffective when he failed to move to dismiss based upon the prosecutor’s 

failure to produce potentially exculpatory evidence. 

IV. Defendant was denied his state and federal constitutional right to a fair trial 

where the prosecutor referred to inadmissible 404(B) evidence involving a prior 

armed robbery by a vehicle like the one in which he was driving. 

V. Defendant was denied his state and federal constitutional rights to effective 

assistance of counsel by his attorney’s failure to investigate, bring a motion for 

mistrial and to dismiss. 

The Michigan Court of Appeals issued an unpublished per curiam opinion affirming Petitioner’s 

convictions. People v. Hadley, 2005 Mich. App. LEXIS 1143 (Mich. Ct. App. May 10, 2005). 

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

was denied by standard order. People v. Hadley, 708 N.W.2d 404 (2006). 

Petitioner subsequently filed a motion for relief from judgment in the trial court, raising 

several new claims. On November 9, 2006, the trial court issued an opinion and order denying 

Petitioner’s motion for relief from judgment on the ground that “defendant had not shown good 

cause for failure to raise the allegations in his appeal of right; nor had he shown actual prejudice. 

Michigan Court Rule 6.508(D)(3).” 

Petitioner filed a delayed application for leave to appeal this decision with the Michigan 

Court of Appeals, raising the following claims in his brief: 

I. Were Defendant’s state and federal due process rights to a fair and impartial 

trial violated where the prosecutor failed to correct and/or bring to the court’s 

attention that a state witness had testified falsely where knowledge of the false 

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statement was known or should have been recognized as false as early as the 

preliminary examination? Additionally, was trial counsel ineffective when he 

failed to alert the court to this false testimony at trial? 

II. Did the cumulative errors committed by the judge within the fact finding 

process violate Defendant’s state and federal due process guarantee to a fair and 

impartial trier of fact in his bench trial? 

III. Is Defendant entitled to resentencing where his current sentence was based 

upon multiple uncounseled convictions in direct violation of the Tucker-Moore 

ruling and Defendant’s constitutional right to be sentenced based on accurate 

information? Additionally, was trial counsel constitutionally ineffective in failing 

to argue against these uncounseled convictions being used at sentencing? 

IV. Has Defendant shown “good cause” and “actual prejudice” and thus entitled 

to relief from judgment pursuant to Michigan Court Rule 6.508(D)? 

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. Hadley, No. 

277368 (Mich. Ct. App. October 23, 2007). Petitioner then filed an application for leave to 

appeal with the Michigan Supreme Court, but it was also denied under Rule 6.508(D). People v. 

Hadley, 748 N.W.2d 805 (2008). 

Petitioner then filed the instant application for habeas relief, asserting the same claims he 

presented to the state courts. 

II. Discussion 

a. Legal Standards 

The amendments to 28 U.S.C. § 2254, enacted as part of the Antiterrorism and Effective 

Death Penalty Act of 1996 (“AEDPA”), circumscribe the standard of review federal courts must 

apply when considering an application for a writ of habeas corpus raising constitutional claims. 

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Wiggins v. Smith, 539 U.S. 510, 520 (2003). As amended, 28 U.S.C. ' 2254(d) permits a 

federal court to issue the writ only if the state court decision on a federal issue “was contrary to, 

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

Supreme Court,” or it amounted to “an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.” 28 U.S.C. ' 2254(d)(1)-(2); Franklin v. 

Francis, 144 F.3d 429, 433 (6th Cir. 1998). Under that review standard, mere error by the state 

court does not justify issuance of the writ; rather, the state court’s application of federal law 

“must have been objectively unreasonable.” Wiggins, 539 U.S. at 520-21 (quoting Williams v. 

Taylor, 529 U.S. 362, 409 (2000) (internal quotes omitted)). Additionally, this Court must 

presume the correctness of state court factual determinations. 28 U.S.C. ' 2254(e)(1) (“In a 

proceeding instituted by an application for a writ of habeas corpus by a person in custody 

pursuant to the judgment of a State court, a determination of a factual issue made by a State court 

shall be presumed to be correct.”); see also West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) 

(stating that “[t]he court gives complete deference to state court findings of historical fact unless 

they are clearly erroneous”). 

The Supreme Court has explained the proper application of the “contrary to” clause as 

follows: 

A state-court decision will certainly be contrary to [the Supreme Court’s] clearly 

established precedent if the state court applies a rule that contradicts the 

governing law set forth in our cases. . . . 

A state-court decision will also be contrary to this Court’s clearly established 

precedent if the state court confronts a set of facts that are materially 

indistinguishable from a decision of this Court and nevertheless arrives at a result 

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different from [the Court’s] precedent. 

Williams, 529 U.S. at 405-06. 

The Supreme Court has held that a federal court should analyze a claim for habeas corpus 

relief under the “unreasonable application” clause of ' 2254(d)(1) “when a state-court decision 

unreasonably applies the law of this Court to the facts of a prisoner’s case.” Id. at 409. The 

Court has explained that an unreasonable application of federal law is different from an incorrect 

application of federal law. Under that language, “a federal habeas court may grant the writ if the 

state court identifies the correct governing legal principle from [the Supreme] Court’s decisions 

but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 

413. The Supreme Court has continued to emphasize the limited nature of this review. In its 

recent unanimous decision in Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770, 178 L. Ed. 2d 

624 (2011), the Court reiterated that the AEDPA requires federal habeas courts to review state 

court decisions with “deference and latitude,” and “[a] state court’s determination that a claim 

lacks merit precludes habeas relief so long as ‘fairminded jurists could disagree’ on the 

correctness of the state court’s decision.” Id. at 785-86 (quoting Yarborough v. Alvarado, 541 

U.S. 652, 664 (2004)). 

The distinction between mere error and an objectively unreasonable application of 

Supreme Court precedent creates a substantially higher threshold for obtaining relief than de 

novo review. The AEDPA thus imposes a highly deferential standard for evaluating state-court 

rulings and demands that state-court decisions be “given the benefit of the doubt.” Renico v. 

Lett, --- U.S. ---, 130 S. Ct. 1855, 1862, 176 L. Ed. 2d 678 (2010) (finding that the state court’s 

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rapid declaration of a mistrial on grounds of jury deadlock was not unreasonable even where 

“the jury only deliberated for four hours, its notes were arguably ambiguous, the trial judge’s 

initial question to the foreperson was imprecise, and the judge neither asked for elaboration of 

the foreperson’s answers nor took any other measures to confirm the foreperson’s prediction that 

a unanimous verdict would not be reached”) (internal quotation marks and citations omitted). 

b. Identification of Petitioner 

 Petitioner first asserts that the trial court erroneously allowed the victim to identify him at 

trial because the in-court identification was the result of a suggestive identification occurring at 

the preliminary examination. He also asserts, in a portion of his fifth claim, that his counsel was 

ineffective for failing to challenge the in-court identification on these grounds. The Michigan 

Court of Appeals rejected the claims on the merits, and Respondent asserts that habeas relief is 

barred under §2254(d) because the state court’s adjudication of the claim was reasonable. 

 The Due Process Clause protects the accused against the introduction of evidence that 

results from an unreliable identification obtained through unnecessarily suggestive procedures. 

Moore v. Illinois, 434 U.S. 220, 227 (1977). A conviction based on identification testimony that 

follows a pretrial identification procedure violates the defendant’s constitutional right to due 

process “if the . . . procedure was so impermissibly suggestive as to give rise to a very substantial 

likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 

(1968). It is the likelihood of misidentification that violates a defendant’s due process right. Neil 

v. Biggers, 409 U.S. 188, 198 (1972). 

 The Supreme Court has identified five factors to consider in determining the reliability of 

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identification evidence: (1) the witness’s opportunity to view the criminal at the time of the 

crime; (2) the witness’s degree of attention at the time of the crime; (3) the accuracy of the 

witness’s prior description of the defendant; (4) the witness’s level of certainty when identifying 

the suspect at the confrontation; and (5) the length of time that has elapsed between the time and 

the confrontation. Id. at 199-200. A criminal defendant has the initial burden of proving that the 

identification procedure was impermissibly suggestive. If a defendant meets his burden, the 

burden then shifts to the prosecutor to prove that the identification was reliable independent of 

the suggestive identification procedure. See United States v. Wade, 388 U.S. 218, 240 n.31 

(1967); Johnson v. Warren, 344 F. Supp. 2d 1081, 1090 (E.D. Mich. 2004). If a defendant fails 

to show that the identification procedures were impermissibly suggestive, or if the totality of the 

circumstances indicates that the identification is otherwise reliable, no due process violation has 

occurred. As long as there is not a substantial likelihood of misidentification, it is for the jury to 

determine the ultimate weight to be given to the identification. See United States v. Hill, 967 

F.2d 226, 230 (6th Cir. 1992); Johnson, 344 F. Supp. 2d at 1090. 

 In rejecting Petitioner’s argument on direct appeal, the Michigan Court of Appeals ruled 

as follows: 

Defendant first argues that he was denied his right to due process and a fair trial 

when the trial court denied his motion to suppress the victim’s identification of 

him at the preliminary examination, because it was unduly suggestive and there 

was no independent basis for the victim’s in-court identification of him at trial. 

An identification procedure that is unnecessarily suggestive and conducive to 

irreparable misidentification constitutes a denial of due process. People v. 

Williams, 244 Mich. App. 533, 542 (2001). In order to challenge an identification 

on the lack of due process, a defendant must show that the pretrial identification 

procedure was so suggestive in light of the totality of the circumstances that it led 

to a substantial likelihood of misidentification. Id. If the trial court finds that the 

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procedure was impermissibly suggestive, evidence concerning the identification is 

inadmissible at trial unless an independent basis for in-court identification can be 

established that is untainted by the suggestive pretrial procedure. Id. at 542-543. 

We review de novo a trial court’s ultimate decision regarding a motion to 

suppress. People v. Davis, 250 Mich. App. 357, 362 (2002). However, we review 

a trial court’s findings of fact from a suppression hearing for clear error. Id. A 

finding of fact is clearly erroneous if, after a review of the entire record, we are 

left with the definite and firm conviction that a mistake has been made. Id. 

There is no per se rule that all in-court identifications at preliminary examinations 

are impermissibly suggestive. People v. Fuqua, 146 Mich. App. 133, 143 (1985), 

overruled in part on other grounds in People v. Heflin, 434 Mich. 482, 498 

(1990); People v. Johnson, 58 Mich. App. 347, 353 (1975). Instead, we examine 

the totality of the circumstances to determine whether the victim’s identification 

of defendant at the preliminary examination was unduly suggestive. People v. 

McElhaney, 215 Mich. App. 269, 287 (1996). 

Here, the victim had the opportunity to observe defendant at close proximity 

during the robbery. Additionally, the victim explained that he failed to positively 

identify defendant at the live lineup because he believed that the perpetrator 

would be wearing the same clothing that he was wearing during the incident. The 

victim positively identified defendant at the preliminary examination, less than 

one month after the incident. Moreover, the victim explained that when he was 

robbed, the perpetrator had his head down, and had the hood of his jacket cinched 

around his face so that only the part of his face from the top of his eyebrows to his 

moustache was in view. The victim then explained that at the preliminary 

examination, defendant’s head was tilted down, and it was at that point that he 

recognized defendant as the perpetrator. The victim confirmed that before the 

preliminary examination he was not told that the perpetrator would be in court, 

and that he did not identify defendant as the perpetrator solely because defendant 

was with an attorney. 

Contrary to defendant’s assertion on appeal, we find that the instant case is 

distinguishable from People v. Solomon, 47 Mich. App. 208, 216-221 (1973) 

(Lesinski, C.J., dissenting), adopted at 391 Mich. 767 (1974). In Solomon, the 

identifying eyewitness was told by the police before the preliminary examination 

that “they had the guy,” and the preliminary examination did not occur until two 

and a half years after the incident. Solomon, supra at 211-212. In this case, 

however, the victim was not told before the preliminary examination that the 

perpetrator would be in court, and the preliminary examination occurred less than 

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one month after the incident. Under the totality of the circumstances, defendant’s 

right to due process was not violated by the victim’s identification of him at the 

preliminary examination. McElhaney, supra at 287. 

Because there was no impropriety in the victim’s pretrial identification of 

defendant at the preliminary examination, there was no need to establish an 

independent basis for an identification. Id. at 288. We find that the trial court did 

not clearly err in its determination that the victim’s pretrial identification of 

defendant at the preliminary examination was not tainted by improper procedure 

and was not unduly suggestive. Id. at 286. Because defendant was unable to show 

that the pretrial identification procedure was so suggestive in light of the totality 

of the circumstances that it led to a substantial likelihood of misidentification, the 

trial court properly denied defendant’s motion to suppress. Davis, supra at 362; 

Williams, supra at 542. 

Hadley, 2005 Mich. App. LEXIS 1143, at *1-5. 

 The Court cannot find that this determination contravened or unreasonably applied 

federal law. Petitioner argues that his identification at the preliminary examination must have 

been suggestive because the victim was unable to identify him at a pretrial line-up procedure. 

But even if the preliminary examination confrontation constituted an unduly suggestive 

identification procedure, the five Biggers factors weigh in favor of the reliability of the 

identification. “If an identification is reliable, it will be admissible even if the confrontation was 

suggestive.” Howard v. Bouchard, 405 F.3d 459, 469 (6th Cir. 2005). 

 First, the witness had an adequate opportunity to view the criminal at the time of the 

crime. The perpetrator was close enough to the victim to point the gun at his face and reach into 

his pocket. Though it was nighttime, the witnesses testified that the streets and carwash were 

well lit. The two men had time to exchange a few words. When the perpetrator asked for the 

victim’s money, the victim replied that he did not have any. When the perpetrator removed the 

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wallet and the twelve dollars inside it, he asked whether that was all he had. The victim replied 

that it was all he had because it was just after Christmas. When the perpetrator began to walk 

away, the victim asked for his driver’s license back. This exchange gave the victim and an 

adequate opportunity to observe the perpetrator at the time of the crime. Second, the witness was 

paying a great deal of attention at the time of the crime. As the victim of the crime, the 

identifying witness was focused on the perpetrator. See, e.g., United States v. Crozier, 259 F.3d 

503, 511 (6th Cir. 2001). Third, the witness did not inaccurately describe Petitioner. While it is 

true that he failed to identify Petitioner at the line-up, the description of his clothes matched what 

Petitioner was wearing when he was caught minutes after the crime. Fourth, the victim 

expressed a high level of certainty when identifying the suspect. He stated that he was “sure” of 

his identification. Finally, only a short length of time elapsed between the time of the crime 

and the confrontation. The preliminary examination occurred within a month of the crime. 

Compare Holland v. Wolfenbarger, 2010 U.S. Dist. LEXIS 129461, *24-25 (E.D. Mich. Dec. 8, 

2010) (delay of a few weeks not substantial); Chandler v. Sherry, 2010 U.S. Dist. LEXIS 121611 

( E.D. Mich. Nov. 17, 2010) (two-week delay between crime and lineup not substantial). In sum, 

the relevant factors reasonably support the state court’s determination. 

 Furthermore, because a police officer watched Petitioner commit the crime and never lost 

sight of him until after he was arrested, there is no real question about his identity as the 

perpetrator. Any error in allowing the testimony, therefore did not have a substantial impact on 

the outcome of the trial. Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (citing Brecht v. 

Abrahamson, 507 U.S. 619, 637 (1993)). In other words, the evidence of Petitioner’s guilt was 

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overwhelmingly proved by the testimony of the officers alone, which the trial court sitting as 

finder of fact found to be credible. 

 Petitioner’s related ineffective-assistance-of-counsel claim is also without merit. Because 

the identification testimony was admissible, Petitioner’s counsel did not perform deficiently by 

failing to object to it. Counsel cannot be deemed ineffective for failing to raise a meritless 

objection. See Harris v. United States, 204 F.3d 681, 683 (6th Cir. 2000). 

c. Sufficiency of Evidence at Trial 

 Petitioner claims in his second ground for relief that insufficient evidence was presented 

at trial to sustain his conviction for armed robbery. Petitioner argues that the prosecutor failed to 

prove his identity as the perpetrator of the crime. 

 “[T]he Due Process Clause protects the accused against conviction except upon proof 

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is 

charged.” In re Winship, 397 U.S. 358, 364(1970). The critical inquiry on habeas review of the 

sufficiency of the evidence to support a criminal conviction is 

whether the record evidence could reasonably support a finding of guilt beyond a 

reasonable doubt. . . . [T]his inquiry does not require a court to “ask itself whether 

it believes that the evidence at the trial established guilt beyond a reasonable 

doubt.” Instead, the relevant question is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citation and footnote omitted) 

(emphasis in original). In the habeas context, “[t]he Jackson standard must be applied ‘with 

explicit reference to the substantive elements of the criminal offense as defined by state law.’” 

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Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16). “A 

reviewing court does not reweigh the evidence or redetermine the credibility of the witnesses 

whose demeanor has been observed by the trial court.” Matthews v. Abramajtys, 319 F.3d 780, 

788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983). A habeas court 

must defer to the fact finder for its assessment of the credibility of witnesses. Id. at 788. 

Accordingly, “[t]he mere existence of sufficient evidence to convict . . . defeats a petitioner’s 

claim.” Id. at 788-89. The Court does not need to be convinced that Petitioner is actually guilty 

beyond a reasonable doubt. Walker v. Russell, 57 F.3d 472, 475 (6th Cir. 1995). 

 The Michigan Court of Appeals addressed Petitioner’s sufficiency-of-the-evidence claim 

and rejected it on the merits as follows: 

Defendant next argues that there was insufficient evidence to sustain his 

conviction for armed robbery. Specifically, defendant challenges the sufficiency 

of the evidence regarding his identity as the robber. “[A] challenge to the 

sufficiency of the evidence at a bench trial is reviewed by considering the 

evidence presented in a light most favorable to the prosecution and determining 

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

crime proven beyond a reasonable doubt.” People v. Daniels, 172 Mich. App. 

374, 378 (1988). 

Identity is always an essential element in a criminal prosecution, People v. 

Oliphant, 399 Mich. 472, 489 (1976), and the prosecutor must identify the 

accused as the person who committed the alleged offense. People v. Kern, 6 

Mich. App. 406, 409-410 (1967). “Identity may be shown by either direct 

testimony or circumstantial evidence which gives the [trier of fact] an abiding 

conviction to a moral certainty that the accused was the perpetrator of the 

offense.” Id. Defendant argues that the evidence presented at trial concerning his 

identity as the robber was insufficient because the victim was unable to identify 

him at the live lineup, and because of discrepancies between the testimony of the 

victim and Sergeant Odell Godbold, who witnessed the robbery. 

Here, the victim testified that after defendant robbed him at a carwash, defendant 

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threw the victim’s car keys near a dumpster, and ordered the victim to start 

walking away from the scene out to the main street. When the victim reached the 

middle of the street he saw defendant turn and start walking down the back side of 

the carwash. At that point, the victim heard a commotion near the corner and 

heard someone say “we got him.” Sgt. Godbold testified that he witnessed the 

entire robbery, and pursued defendant from the moment he left the victim to the 

moment he was apprehended. Godbold maintained that he never lost sight of 

defendant. Defendant, on the other hand, testified that he was urinating near the 

corner at the time he was arrested. 

On appeal, defendant posits that the identity of the perpetrator was not proven 

beyond a reasonable doubt because of the discrepancy between the testimony of 

the victim and Godbold. That is, defendant argues that he could not have been the 

perpetrator if the victim could see the perpetrator at the same time he heard a 

commotion – Godbold apprehending defendant near the corner. However, the 

prosecution argued in closing that the commotion the victim heard was likely the 

arrest of defendant’s friend, Donyell Woods. 

Defendant also takes issue with alleged discrepancies between the descriptions of 

the perpetrator’s clothing given by the victim and Godbold. The victim testified 

that the perpetrator was wearing a white or light colored hooded jacket with dark 

patches on the sleeves. Godbold testified that defendant was wearing a black and 

white jogging suit at the time of his arrest. Defendant testified that he was 

wearing jogging pants and a t-shirt at the time of his arrest; the matching jacket, 

which was black and white striped, was recovered from Woods’ car. 

The trial court noted that this case came down to the issues of identification and 

credibility. In making its determination that defendant was guilty of the charged 

offenses, the trial court noted that it found Godbold to be a credible witness and 

assigned particular weight to Godbold’s testimony that he observed the entire 

incident and did not lose sight of defendant from the time of the robbery until the 

time defendant was apprehended. The trial court noted that Godbold’s testimony 

corroborated the victim’s account of the incident, and specifically commented on 

the similarity in details with which both witnesses described the incident. The 

trial court also found the description of the perpetrator’s clothing given by the 

victim and Godbold to be largely consistent. The trial court commented that it did 

not find defendant to be a credible witness, and disbelieved defendant’s testimony 

that he was merely urinating at the time of his arrest and was only wearing a tshirt outside in late December. 

The trial court, sitting as trier of fact, was entitled to judge the credibility of the 

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witnesses and determine the weight to give to the evidence. People v. Marji, 180 

Mich. App. 525, 542 (1989). Although there appears to be some question 

concerning how the victim had the perpetrator in sight at the time he heard a 

commotion--which could have been the apprehension of either defendant or his 

friend--the trial court was satisfied that defendant was the perpetrator on the basis 

of Godbold’s testimony that he did not lose sight of defendant from the time of 

the robbery until the time he was apprehended. Moreover, we will not interfere 

with the trier of fact’s role of determining the weight of the evidence or deciding 

the credibility of the witnesses, and all conflicts in the evidence must be resolved 

in favor of the prosecution. People v. Fletcher, 260 Mich. App. 531, 561-562 

(2004). Therefore, we conclude that the evidence presented in this case was 

sufficient to support defendant’s convictions. 

Hadley, 2005 Mich. App. LEXIS 1143, *9-10 (footnotes omitted). 

 The state appellate court did not unreasonably apply the clearly established standard 

when it rejected Petitioner’s claim. The court recited the correct standard and applied it to the 

facts of Petitioner’s case in an objectively reasonable way. Viewed most favorably to the 

prosecution, the evidence showed that Sgt. Godbold witnessed the entire criminal episode and 

never lost site of the perpetrator from the moment he confronted the victim until after he was 

arrested. Petitioner’s challenge to Godbold’s credibility was a matter for the trial judge, sitting 

as fact-finder, to resolve – it does not implicate the legal sufficiency of the evidence. Matthews, 

319 F.3d at 788. 

d. Fingerprint Analysis 

 Petitioner asserts in his third claim that the prosecutor failed to reveal potentially 

exculpatory records from a fingerprint analysis performed on the handgun recovered at the scene. 

He also asserts in the remaining portion of his fifth claim that his counsel was ineffective for 

failing to move to dismiss the case on this basis. Respondent asserts that review of the claim is 

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barred by Petitioner’s failure to raise the issue at trial. 

 Because these claims are clearly without merit, the Court will reject them on that basis 

without resolving the procedural default issue. See Lambrix v. Singletary, 520 U.S. 518, 524-25 

(1997) (noting that procedural default issue should ordinarily be resolved first, but denying 

habeas relief on a different basis because resolution of the default issue would require remand 

and further judicial proceedings). 

 The Due Process Clause requires the state to disclose exculpatory evidence to the 

defense. See Brady v. Maryland, 373 U.S. 83 (1963). “There are three components of a true 

Brady violation: The evidence at issue must be favorable to the accused, either because it is 

exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, 

either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 

263, 281-82 (1999). Thus, in order to establish a Brady claim, Petitioner must show that: (1) 

evidence was suppressed by the prosecution in that it was not known to Petitioner and not 

available from another source; (2) the evidence was favorable to Petitioner; and (3) the evidence 

was material to the question of Petitioner’s guilt. See Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 

2000); Luton v. Grandison, 44 F.3d 626, 628-29 (8th Cir. 1994). Petitioner bears the burden of 

establishing each of these three elements. See Carter, 218 F.3d at 601. 

 With respect to Petitioner’s alternate claim that his counsel was ineffective for failing to 

move to dismiss the case, to show a violation of the Sixth Amendment right to effective 

assistance of counsel, a petitioner must demonstrate “that counsel’s performance was deficient” 

and “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 

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668, 687 (1984). Petitioner must show “that counsel made errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 

466 U.S. at 687. 

 The Michigan Court of Appeals rejected Petitioner’s claims with these words: 

Defendant next argues that he was denied his right to due process and a fair trial 

when the prosecution failed to provide defense counsel with the results of 

fingerprint analysis of the alleged robbery weapon. Whether defendant was 

denied his due process right to information is a question of law, which we review 

de novo on appeal. See People v. Sierb, 456 Mich. 519, 522 (1998). However, 

because defendant failed to raise the issue below, our review is limited to plain 

error affecting defendant’s substantial rights. People v. Carines, 460 Mich. 750, 

763-764 (1999). 

A criminal defendant has a due process right to obtain exculpatory evidence 

possessed by the prosecutor if it would raise a reasonable doubt as to the 

defendant’s guilt. People v. Stanaway, 446 Mich. 643, 666 (1994), citing Brady 

v. Maryland, 373 U.S. 83 (1963). In order to establish a Brady violation, a 

defendant must prove: (1) that the state possessed evidence favorable to the 

defendant; (2) that the defendant did not possess the evidence nor could he have 

obtained it himself with any reasonable diligence; (3) that the prosecution 

suppressed the favorable evidence; and (4) that had the evidence been disclosed to 

the defense, a reasonable probability exists that the outcome of the proceedings 

would have been different. People v. Lester, 232 Mich. App. 262, 281 (1998). 

Here, the record reveals that before trial, in response to defendant’s motion for 

additional discovery, the parties stipulated to, and the trial court subsequently 

ordered, a fingerprint analysis of the alleged robbery weapon. The trial court also 

ordered that defense counsel be provided with a report of the results of the 

analysis. However, the record of the final pretrial conference reveals that at that 

time, defense counsel had not yet received such information. The prosecutor 

indicated on the record that he would make an inquiry and convey his findings to 

defense counsel. However, there is no further reference in the lower court record 

to fingerprint analysis being performed and/or the results of any such analysis. As 

a result, defendant is unable to prove that the prosecutor possessed any fingerprint 

evidence, let alone evidence that was favorable to him. Consequently, defendant 

is unable to establish a Brady violation. Defendant has failed to demonstrate plain 

error; therefore, he is not entitled to relief on this unpreserved issue. 

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Defendant alternatively argues that defense counsel was ineffective for failing to 

obtain the fingerprint analysis results; however, as noted above, it is unclear 

whether such an analysis was ever performed. A claim of ineffective assistance 

of counsel cannot be predicated on the failure to procure evidence which does not 

exist and which has not been shown to have any potential to affect the outcome of 

the trial; therefore, defendant is not entitled to relief on this issue. People v. 

Goodin, 257 Mich. App. 425, 433 (2003). 

Hadley, 2005 Mich. App. LEXIS 1143, *10-13. 

 The state appellate court reasonably rejected Petitioner’s claims. The record shows that 

defense counsel asked for a fingerprint analysis of the handgun prior to trial. The trial court then 

entered a stipulated order for the fingerprint analysis to be performed and for the results to be 

sent to the attorneys. When no results were produced by the appointed date, defense counsel 

raised the issue at a pretrial hearing. The prosecutor responded that he would enquire about the 

analysis and contact defense counsel with the results. There is no further mention of the request 

for the fingerprint analysis in the record. But during closing argument, defense counsel stated no 

evidence was presented that Petitioner’s fingerprints were recovered from the firearm. 

 The claims are undermined because there is no basis for concluding that any exculpatory 

fingerprint analysis exists. It does not follow from the fact that no mention of the results of the 

analysis was made after the pretrial, that results were not handed over to defense counsel. 

Indeed, the record shows that defense counsel did not ignore this issue: he filed the motion for 

the analysis to be conducted in the first place, and then he complained when the results were not 

received on time. There is presumption that counsel provided effective assistance, Strickland, 

466 U.S. at 690, and so it must be assumed absent evidence to the contrary that he received a 

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satisfactory response from the prosecutor following the pretrial. Petitioner has not proffered any 

evidence to this court, nor did he offer any to the state courts, that his trial counsel never received 

a response from the prosecutor regarding the analysis. 

 Nor is Petitioner entitled to an evidentiary hearing to support his claim in this Court. 

Under 28 U.S.C. § 2254(e)(2), a petitioner “has failed to develop” a factual basis of a claim in 

state court, and therefore may not expand the record in a habeas proceeding, where there is “a 

lack of diligence, or some greater fault attributable to the prisoner or the prisoner’s counsel.” 

Michael Williams v. Taylor, 529 U.S. 420, 432(2000). Diligence requires that the prisoner “at a 

minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.” Id. 

at 437. Although Petitioner requested an evidentiary hearing in his motion to remand filed in the 

Michigan Court of Appeals, the request was not made in “the manner prescribed by state law.” 

Michigan Court Rule 7.211(C)(1) requires that a motion for remand be supported by an affidavit 

or offer of proof regarding the facts to be established at a hearing, neither of which Petitioner 

included in his application. See Michigan Court Rule 7.211(C)(1). If defense counsel failed to 

receive a response from the prosecutor, a diligent litigant would have obtained an affidavit 

attesting to that fact. Therefore, Petitioner is barred by § 2254(e)(2) from obtaining an 

evidentiary hearing in federal court. 

 Furthermore, the Supreme Court recently held: “[E]vidence introduced in federal court 

has no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a state 

court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that 

was before that state court.” Cullen v. Pinholster, --- U.S. ---, 131 S. Ct. 1388, 1400, 179 L. Ed. 

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2d 557 (2011). Based on the existing record, Petitioner cannot support his claims that the results 

of the fingerprint analysis were not communicated to defense counsel or that his counsel was 

ineffective in how he handled the matter. 

 For these reasons, Petitioner has not demonstrated that the state court adjudication of his 

Brady or ineffective-assistance-of-counsel claims resulted in an unreasonable application of 

clearly established Supreme Court law. 

e. Testimony Regarding Prior Bad Acts 

 Petitioner next asserts that his right to a fair trial was violated when the trial court 

allowed a police officer to testify that he observed a vehicle matching the description of one used 

in an earlier robbery near the carwash at the time of the instant robbery. Petitioner reasons that 

the testimony amounted to the improper admission of “prior bad acts” evidence under Michigan 

Rules of Evidence 404(b) because it suggested that Petitioner was involved in the prior robbery. 

Respondent correctly argues that this claim does not provide a cognizable ground for relief. 

 Petitioner has not presented, and this Court has not found, any Supreme Court precedent 

holding that a state court violates due process when it properly admits evidence of a criminal 

defendant’s other bad acts. “There is no clearly established Supreme Court precedent which 

holds that a state violates due process by permitting propensity evidence in the form of other bad 

acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003); see also Fed. R. Evid. 413 

and 414 (allowing such evidence in federal criminal trials). As there is no “clearly established 

federal law” to which the state court’s decision could be “contrary,” within the meaning of 

section 2254(d)(1), Petitioner’s fourth claim does not entitle him to habeas relief. 

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f. Ineffective Assistance of Counsel 

 Petitioner’s fifth claim–alleging ineffective assistance of trial counsel has already been 

rejected for the reasons set forth above. 

g. Truthfulness of Witness Testimony 

Petitioner’s sixth claim asserts that the prosecutor allowed a witness to testify falsely at 

trial. Respondent asserts that review of this claim, as well as his remaining claims, is barred 

because the claims were rejected by the state courts based on a procedural rule requiring the 

claims to have been raised on direct review. See Michigan Court Rule 6.508(D)(3). Because the 

claims are clearly without merit, the Court will reject them on that basis without resolving the 

procedural default issue. Lambrix, supra. 

 The United States Supreme Court has made clear that the “deliberate deception of a court 

and jurors by the presentation of known and false evidence is incompatible with the rudimentary 

demands of justice.” Giglio v. United States, 405 U.S. 150, 153 (1972) (internal quotation marks 

omitted). It is well-settled that “a conviction obtained by the knowing use of perjured testimony 

is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false 

testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 

103 (1976) (footnote omitted); see also Napue v. Illinois, 360 U.S. 264, 271 (1959); Coe v. Bell, 

161 F.3d 320, 343 (6th Cir. 1998). A habeas petitioner bears the burden of proving that the 

disputed testimony constituted perjury. See Napue, 360 U.S. at 270. Mere inconsistencies in 

witness testimony do not establish the knowing use of false testimony by the prosecutor. Coe, 

161 F.3d at 343. Nor does the fact that a witness contradicts himself or another witness or 

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changes his story establish perjury. Malcum v. Burt, 276 F. Supp. 2d 664, 684 (E.D. Mich. 

2003) (citing Monroe v. Smith, 197 F. Supp. 2d 753, 762 (E.D. Mich. 2001)). 

 Petitioner asserts that there were differences in the description of the perpetrator given by 

Sgt. Godbold and the victim, and that therefore one of them must have been testifying falsely. 

At trial, the victim described Petitioner as wearing “either white or light colored jacket, 

wintertime, with a hood that had dark sleeves either back or blue. . . . There were black patches 

coming down the side of it.” Trial Tr. at 27. Godbold’s police report indicated that Petitioner 

was wearing a “black and white jogging suit” when he was arrested. While the descriptions were 

different, they were not inconsistent. Both witnesses essentially testified that Petitioner was 

wearing a two-toned jacket that was partially white and partially dark colored. The victim 

simply gave a more detailed description that was consistent with Godbold’s description. 

Petitioner has not come close to establishing that the witness’s testimony was inconsistent, let 

alone that the prosecutor knowingly presented false testimony. 

h. Bias of Trial Court 

Petitioner’s next claim asserts that the trial court made a number of factual errors when, 

sitting as trier of fact, it rendered its verdict. He claims that the errors show that the court the 

court was not impartial. 

 It is well-established that “‘federal habeas corpus relief does not lie for errors of state 

law.’” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 

(1990)). While state law requires a trial court to make detailed factual findings following a 

bench trial, see Mich. Court Rule 6.403, there is no such federal constitutional requirement. 

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Therefore, the trial court judge’s allegedly incorrect findings of fact at the bench trial cannot 

support a claim for habeas relief because there is no Supreme Court decision that requires a trial 

court judge to make specific findings of fact at a bench trial in order to satisfy constitutional 

concerns. See Wofford v. Straub, 27 Fed. Appx. 517, 520 (6th Cir. 2001). 

 As for the claim that the findings reveal that the trial court was biased, unfavorable 

judicial rulings almost never constitute judicial bias. Liteky v. United States, 510 U.S. 540, 555 

(1994). A review of the trial court’s findings of fact reveals that it fairly and justly weighed the 

evidence presented at trial when it rendered its decision. The colloquy does not reveal any bias. 

i. Prior Convictions Used in Determining Sentencing 

 Petitioner next asserts that the trial court erroneously considered prior uncounseled 

convictions in determining his sentence. 

 In Townsend v. Burke, 334 U.S. 736 (1948), the Supreme Court held that it violates a 

criminal defendant’s right to due process to sentence the defendant “on the basis of assumptions 

concerning his criminal record which were materially untrue.” Id. at 741. In Gideon v. 

Wainwright, 372 U.S. 335 (1963), the Court held that the Sixth Amendment right to counsel 

makes it unconstitutional to try a person for a felony in a state court unless he had a lawyer or 

had validly waived one. In Burgett v. Texas, 389 U.S. 109, 114 (1967) the Court extended its 

holding in Gideon, concluding that a conviction obtained in violation of Gideon cannot be used 

to either support guilt or enhance punishment for another, subsequent offense. See Burgett, 389 

U.S. at 115. Extrapolating from both Townsend and Gideon/Burgett, the Court held in United 

States v. Tucker, 404 U.S. 443 (1972), that a sentencing court’s reliance on convictions which 

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are “wholly unconstitutional under Gideon” results in a “sentence founded at least in part upon 

misinformation of a constitutional magnitude” of the type prohibited by Townsend. Tucker, 404 

U.S. at 447. It is petitioner’s burden, however, to show both that he was without counsel for 

these prior convictions, and that the presence of counsel was not validly waived. See Hobson v. 

Robinson, 27 Fed. Appx. 443, 445 (6th Cir. 2001) (citing Parke v. Raley, 506 U.S. 20, 28-34 

(1992)). 

 Petitioner has made no such showing. The presentence investigation report does not 

indicate that Petitioner was not provided with counsel for the prior convictions. The preparer of 

the report merely states that it was “unknown” whether Petitioner had counsel. The record also 

does not reveal whether there had been any waiver of counsel, if indeed Petitioner did not have 

counsel. Because Petitioner has failed to demonstrate that the prior convictions were obtained 

without the benefit of counsel or that he did not validly waive his right to counsel, he has not 

established entitlement to habeas relief on this claim. 

j. Procedural Default 

 Petitioner’s final claim asserts that he can demonstrate cause and prejudice to excuse any 

procedural default. Because the Court has rejected each of his substantive claims on the merits, 

this assertion is moot. 

III. Conclusion 

 Petitioner has not established that he is presently in custody in violation of the 

Constitution or laws of the United States. Accordingly, it is ordered that the petition for a writ of 

habeas corpus is denied. 

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

certificate of appealability is issued under 28 U.S.C. § 2253. Rule 11 of the Rules Governing 

Section 2254 Proceedings now requires that the Court must issue or deny a certificate of 

appealability when it enters a final order adverse to the applicant. A certificate of appealability 

may be issued only if the applicant has made a substantial showing of the denial of a 

constitutional right. 28 U.S.C. § 2253(c)(2). A petitioner must show that reasonable jurists 

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

different manner or that the issues presented were adequate to deserve encouragement to proceed 

further. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted). The Court concludes 

that reasonable jurists would not debate its conclusions. Thus, the Court denies a certificate of 

appealability. Further, Petitioner is granted leave to appeal in forma pauperis. 

 SO ORDERED. 

Dated: March 22, 2012 s/Mark A. Goldsmith 

 Flint, Michigan MARK A. GOLDSMITH 

 United States District Judge 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court's ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on March 22, 2012. 

 s/Deborah J. Goltz 

 DEBORAH J. GOLTZ 

 Case Manager 

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