UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOSEPH MCCAULEY,

Petitioner,

v. Case Number: 09-cv-10215

HON. AVERN COHN

NICK LUDWICK,

Respondent,

____________________________/

MEMORANDUM AND ORDER

DENYING PETITION FOR WRIT OF HABEAS CORPUS

AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Joseph McCauley (“Petitioner”)

is a state prisoner who was convicted of two counts of assault with intent to murder, one

count of felon in possession of a firearm, and three counts of felony firearm following a

jury trial in the Oakland County Circuit Court. He raises claims concerning the

effectiveness of trial counsel and the improper scoring of the sentencing guidelines. 

Respondent, through the Michigan Attorney General’s office, filed a response, arguing

that the petition should be denied because Petitioner’s claims lack merit. For the

reasons which follow, the petition will be denied for lack of merit. The Court also will

decline to issue a certificate of appealability.

II. Facts and Procedural History

Petitioner’s convictions arose from a shooting incident which occurred in Pontiac,

Michigan, on July 12, 2005, in a hallway outside an apartment belonging to his brother,

Jason McCauley. Petitioner’s trial lasted three days. His defense was self-defense. He

2:09-cv-10215-AC-MKM Doc # 7 Filed 07/13/11 Pg 1 of 12 Pg ID 708
2

elected not to testify. Trial testimony revealed the following pertinent facts.

On the day in question, Ronald Young went to Jason’s apartment to visit. Young

dated Petitioner’s sister, Patricia, for fifteen years, and they had two children together. 

When he arrived at the apartment, he saw Petitioner’s truck in the parking lot. A man

named Keon was sitting in the truck on the driver’s side.

Young went into the apartment and asked about Patricia. He was told that she

was outside in the truck. Young testified that his children, Petitioner’s children, and

Jason’s children were in the apartment. He then left. Young admitted to carrying a

weapon, a .38 revolver, tucked into his waistband.

While Young was walking down the hallway, his six-year-old daughter stepped

into the hallway and asked if she could go with him, to which he replied yes. Petitioner

then entered the hallway and said, “you’re not taking shit.” Trial Tr. vol. I, 177 Aug. 18,

2006. Young said he became angry. A physical altercation occurred between him and

Petitioner. Young testified that another man was present during the altercation and

yelled to Petitioner that he (Young) had a gun. During the altercation, Young was shot

several times.

Young admitted to initially grabbing Petitioner by the neck. He could not explain

the sequence of events because he said they occurred rapidly. He could not recall how

many shots were fired but knew that he was hit in the back and that his daughter was

also grazed in the side by one of the bullets. He remembered running from the scene,

hearing shots as he was running, and carrying his daughter outside, where he asked

someone to call the police.

Young further testified that he loved Petitioner like family. Prior to trial, he went

2:09-cv-10215-AC-MKM Doc # 7 Filed 07/13/11 Pg 2 of 12 Pg ID 709
3

to the prosecutor’s office with Petitioner’s mother and asked for leniency for Petitioner. 

He admitted to lying at the preliminary-examination hearing because he said he was

motivated by hate and revenge at that time.

When the police arrived at the scene, they did not find a gun on Young or in the

hallway. Young told the police that Petitioner was the shooter.

Undercover Officer Thomas Martindale, who was based near the scene, received

a radio call about the shooting and a description of the truck. When he saw the truck

matching the description, he informed a marked car, who put on sirens to stop the truck. 

The truck immediately accelerated and made a series of turns until it was pulled over. 

Officer Martindale testified that he initially saw two black males in the truck but when it

was pulled over there was only one black male in the truck, the driver, whom they

apprehended.

Terry Dorius, the maintenance supervisor at the apartment complex, testified

that, after he heard the gunshots, he walked around to the back of the building to enter. 

He saw two black males exiting the complex.

Officer Michael Joyce searched the car. He recovered a taser and computer but

no firearm. About a half mile from the truck, he recovered a broken cell phone and a

cigarette lighter.

Deputy Robert Charlton examined a bullet recovered from the scene of the

shooting. He concluded that the firearm used in the shooting could have come from a

.38 Special or .357 Magnum revolver, or a .9 mm Luger semiautomatic.

Young’s twelve-year-old son, Ronald, also testified. He said he was at Jason’s

apartment when Petitioner and another man, Michael Fernandez, came to visit. He also

2:09-cv-10215-AC-MKM Doc # 7 Filed 07/13/11 Pg 3 of 12 Pg ID 710
4

said his father visited for about twenty minutes. After his father left the apartment,

Ronald said he heard gunshots. Petitioner, Fernandez, his father, and his sister were in

the hallway when he heard the shots. He said he saw his father running away from

Petitioner and Fernandez; Fernandez had a gun pointed at his father. However, in a

prior report, Ronald said he did not see anyone with a gun. After the shooting, he said

Petitioner and Fernandez ran to the truck.

Officer Doug Strabelow arrived at the scene and found Young lying in the parking

lot, covered in blood. There were six bullet holes in him. Officer Strabelow testified that

Young told him that Petitioner shot him because he was dating his sister. The officer

said he was told by people in the parking lot that two black males ran from the

apartment building to a truck, which was driven by a third black male.

Young’s daughter was treated at the hospital for a bullet graze to the hip.

Young had emergency surgery for bullet wounds to his liver, kidney, and lungs. 

He received a tracheotomy, feeding tube, and multiple blood transfusions. He also

received treatment for injuries to his jaw, arm, and back.

Petitioner was apprehended in Toledo, Ohio, about five months after the incident. 

At sentencing, Young asked the trial court for leniency for Petitioner. He said he

brought the firearm to the apartment and that it went off when he and Petitioner were

wrestling. 

The trial judge sentenced Petitioner to concurrent terms of twenty-five to fifty

years in prison for the assault convictions, eighteen months to ten years in prison for the

felon-in-possession conviction, consecutive to the mandatory two-year prison term for

the felony-firearm convictions.

2:09-cv-10215-AC-MKM Doc # 7 Filed 07/13/11 Pg 4 of 12 Pg ID 711
5

Petitioner filed a delayed application for leave to appeal with the Court of

Appeals, raising the same claims raised in this petition. The Court of Appeals denied

the delayed application for lack of merit. People v. McCauley, No. 281517

(Mich.Ct.App. May 1, 2008). Petitioner filed an application for leave to appeal with the

Michigan Supreme Court, again raising the same claims. The Supreme

Court denied his application on September 22, 2008. People v. McCauley, 482 Mich.

991 (2008) (Table).

Petitioner neither filed a post-conviction motion with the state trial court nor a

petition for writ of certiorari with the United States Supreme Court. Rather, on January

20, 2009, he filed the instant petition.

III. Discussion

A. Standard of Review

Petitioner is entitled to a writ of habeas corpus only if he can show that the state

court’s adjudication of his claims on the merits-

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

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

court proceeding.

28 U.S.C. § 2254(d).

A state court’s decision is “contrary to” clearly established federal law “if the state

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

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

has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,

2:09-cv-10215-AC-MKM Doc # 7 Filed 07/13/11 Pg 5 of 12 Pg ID 712
6

412-13 (2000). A state court’s decision is an “unreasonable application of” clearly

established federal law “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.” Id. at 413. A state court decision “based on a factual

determination will not be overturned on factual grounds unless objectively unreasonable

in light of the evidence presented in the state-court proceeding[.]” Miller-El v. Cockrell,

537 U.S. 322, 340 (2003) (citations omitted).

Recently, the Untied States Supreme Court held that “a state court’s

determination that a claim lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” 

Harrington v. Richter, --- U.S. ---, ---, 131 S.Ct. 770, 786 (2011) (citing Yarborough v.

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

strong case for relief does not mean the state court’s contrary conclusion was

unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Section

2254(d) does not completely bar federal courts from relitigating claims that have

previously been rejected in the state courts, but rather, it preserves the authority for a

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

fairminded jurists could disagree that the state court's decision conflicts with” the

Supreme Court’s precedents. Id. Indeed, “[s]ection 2254(d) reflects the view that

habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice

systems,’ not a substitute for ordinary error correction through appeal.” Id. (citing

Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in

judgment)).

2:09-cv-10215-AC-MKM Doc # 7 Filed 07/13/11 Pg 6 of 12 Pg ID 713
7

Therefore, in order to obtain habeas relief in federal court, a state prisoner is

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

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

beyond any possibility for fairminded disagreement.” Harrington, --- U.S. at ---, 131

S.Ct. at 786-87.

B. Petitioner’s Claims

1. Claim I–Ineffective Assistance of Counsel 

In his first claim, Petitioner alleges that trial counsel was ineffective for failing to

analyze medical records for the jury and for failing to object to the prosecutor’s faulty

use of facts not in evidence. Each allegation will be considered in turn.

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

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

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

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

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

doing, the defendant must overcome a strong presumption that counsel’s behavior lies

within the wide range of reasonable professional assistance. Id. In other words,

Petitioner must overcome the presumption that, under the circumstances, the

challenged action might be sound trial strategy. Id. at 689. Second, the defendant

must show that such performance prejudiced his defense. Strickland, 466 U.S. at 689. 

To demonstrate prejudice, the defendant 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.

2:09-cv-10215-AC-MKM Doc # 7 Filed 07/13/11 Pg 7 of 12 Pg ID 714
8

Here, Petitioner has not shown that counsel was deficient or that any alleged

deficiency prejudiced him. Petitioner says that at trial, the prosecutor relied on Young’s

medical records to prove her theory of the case. He claims that defense counsel was

deficient for failing to challenge the medical records because the prosecutor’s theory

was entirely based on Young having been shot in the back. Petitioner argues that such

use of the medical records provided the jury with a potentially flawed and subjection

interpretation. This claim is premised on the assumption that the medical records show

that Young was not shot in the back. Petitioner is mistaken. The medical records state,

“GSW. Pt shot 5 times Mouth, L elbow, R and L Flank, near rectum." That clearly

demonstrates that Young sustained five gunshot wounds, at least one of which was on

his flank, which is in the back. A diagram in the medical records also shows a gunshot

wound near the rectum on Young’s back.

Petitioner has not made any offer of proof through an affidavit, or otherwise,

indicating that the medical records are open to interpretation. Thus, he has failed to

establish that counsel was deficient.

Moreover, contrary to Petitioner’s position, the record indicates that the

prosecutor’s theory was based on the lack of provocation and the number of critical

shots fired. The fact that some shots were fired while the victim was running away was

simply additional proof. Thus, trial counsel was not unreasonably deficient for failing to

challenge the medical records as it relates to whether the shots were fired from behind

when the records were unequivocal regarding the number of shots and the critical

nature of the shots.

Additionally, there was other evidence besides the medical records establishing

2:09-cv-10215-AC-MKM Doc # 7 Filed 07/13/11 Pg 8 of 12 Pg ID 715
9

that Young was shot in the back. Young’s own testimony indicated that he was shot in

the back. He testified that he had damage to his back. He also testified that at least

one shot was fired in his back. He testified that he was running away when his

daughter was grazed by a bullet. He testified that he heard gunshots when he was

running away. He also testified that he was shot at least five times and only four times

in the front.

Overall, under these circumstances, it is highly improbable that had trial counsel

challenged the records, the jury would have acquitted Petitioner in light of the

undisputed and overwhelming evidence against him. Further, because the placement

of the shots in the back was not critical to the prosecutor’s theory, Petitioner has not

shown that he was prejudiced. Habeas relief is not warranted on this ground.

Petitioner also claims that defense counsel was ineffective when he failed

to object to the prosecutor’s question to Young, “[a]nd as you’re running down the

hall, your child gets hit with one of the bullets?” Trial Tr. vol. I, 186-87 Aug. 18,

2006. Petitioner contends that trial counsel should have objected as to lack of

foundation or personal knowledge.

In this case, trial counsel could have anticipated Young’s answer, and not

objected, reasonably assuming that it would be better to have Young exculpate

his client than it would be to object. The prosecutor made the above challenged

statement and Young responded, “Really, I couldn’t tell you if I was getting hit in

the back because I had her like this and I was just running [].” Trial Tr. vol. I, 186-

87 Aug. 18, 2006. 

2:09-cv-10215-AC-MKM Doc # 7 Filed 07/13/11 Pg 9 of 12 Pg ID 716
10

Petitioner fails to demonstrate that trial counsel was deficient and that he

was prejudiced by counsel’s failure to object, because Young’s answer was not

necessarily inculpatory. Further, the jury was clearly instructed that the evidence

consists of statements of witnesses and not the statement by lawyers. Habeas

relief is not warranted on this ground.

2. Claim II–Sentencing Claim

Petitioner next asserts that he is entitled to habeas relief because the trial

court erred in scoring offense variable 6, intent to kill or injure another individual,

of the Michigan sentencing guidelines. Petitioner argues that he was sentenced

on the basis of inaccurate information.

Claims regarding the improper scoring of sentencing guidelines are

state-law claims and not cognizable in habeas-corpus proceedings. Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991); see also Cook v. Stegall, 56 F.Supp.2d

788, 797 (E.D. Mich. 1999) (the sentencing guidelines establish only rules of

state law and, therefore, are not cognizable).

However, a criminal defendant possesses a constitutional right not to be

sentenced on the basis of “misinformation of constitutional magnitude.” Roberts

v. United States, 445 U.S. 552, 556 (1980) (quoting United States v. Tucker, 404

U.S. 443, 447 (1972)); see also Townsend v. Burke, 334 U.S. 736, 740–41

(1948) (stating that reliance on “extensively and materially false” information,

which the prisoner had no opportunity to correct, violates due process of law);

2:09-cv-10215-AC-MKM Doc # 7 Filed 07/13/11 Pg 10 of 12 Pg ID 717
11

Koras v. Robinson, 123 F.App’x 207, 213 (6th Cir. 2005) (same). A Tucker

violation arises only where the improper information “actually served as the basis

for the sentence.” United States v. Jones, 40 F.App’x 15, 17 (6th Cir. 2002)

(citations omitted); Tucker, 404 U.S. at 444, 447.

To be entitled to habeas relief on this claim Petitioner “must show that the

sentencing court actually relied on this information and that it was materially

false.” Hanks v. Jackson, 123 F.Supp.2d 1061, 1074 (E.D. Mich. 2000); see also

Collins v. Buchkoe, 493 F.2d 343, 345-46 (6th Cir. 1974) (same). When a

petitioner fails to demonstrate that the sentencing court relied upon materially

false information in imposing the sentence, the claim is without merit. Thomas v.

Foltz, 654 F.Supp. 105, 108 (E.D. Mich. 1987).

Petitioner has made no such showing. He has failed to establish that the

trial court relied upon materially false or inaccurate information in imposing his

sentence which he had no opportunity to correct. He also not shown he was

prejudiced by any state-law error or miscalculation. Habeas relief is not

warranted on this claim.

IV. Conclusion

For the reasons stated above, Petitioner is not entitled to habeas relief on

the claims raised in his petition. Accordingly, the petition for writ of habeas

corpus is DENIED.

2:09-cv-10215-AC-MKM Doc # 7 Filed 07/13/11 Pg 11 of 12 Pg ID 718
1

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

a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28

U.S.C. foll. § 2254.

12

Furthermore, reasonable jurists would not debate the Court’s assessment

of Petitioner’s claims, nor conclude that the issues deserve encouragement to

proceed further. The Court therefore DECLINES to grant a certificate of

appealability under 28 U.S.C. § 2253(c)(2).1

 See Slack v. McDaniel, 529 U.S.

473, 484 (2000).

SO ORDERED.

Dated: July 13, 2011 S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to the attorneys

of record on this date, July 13, 2011, by electronic and/or ordinary mail.

 S/Julie Owens 

Case Manager, (313) 234-5160

2:09-cv-10215-AC-MKM Doc # 7 Filed 07/13/11 Pg 12 of 12 Pg ID 719