UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT HOARD, IV,

Petitioner, Case Number: 09-10604

Honorable David M. Lawson

v.

PAUL KLEE,

Respondent.

________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Robert Hoard, IV has filed a pro se petition for a writ of habeas corpus alleging

that his state drug and firearms convictions were obtained in violation of the federal Constitution.

Hoard presently is serving a prison sentence for those crimes at the Gus Harrison Correctional

Facility in Adrian, Michigan. He alleges that he is in custody in violation of his constitutional right

to be free from unreasonable searches and seizures, to present a defense, to the effective assistance

of counsel, and to a fair trial. The respondent has filed an answer to the petition asserting that the

petitioner is procedurally barred from bringing his habeas claims in this Court because he failed to

file a timely application for leave to appeal in the Michigan Supreme Court, and, alternatively, that

the claims lack merit. The Court finds that the claims lack merit; therefore, the petition will be

denied.

I. 

The petitioner was charged with the crimes of possession of less than 25 grams of cocaine,

felon in possession of a firearm, possession of marijuana, and possession of a firearm during the

commission of a felony (felony firearm). Before trial, his lawyer filed a motion to suppress evidence

alleging that the search and seizure violated the Fourth Amendment. The trial court denied the

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motion after a hearing. Hoard then was tried before a Saginaw County, Michigan jury in a five-day

trial. The petitioner was represented by counsel at the beginning of the trial, but after the first day

of testimony the petitioner waived his right to counsel and elected to proceed pro se with standby

counsel. 

The Michigan Court of Appeals summarized the facts as follows:

Defendant’s parole agent, Richard Riebschleger of the Michigan Department of

Corrections (MDOC), met with defendant’s father, a policeman, the month before

defendant was to be paroled. Defendant was to live [with] his father, and

defendant’s father assured Riebschleger that he would secure his service revolver,

a Sig Sauer, in a safe and that he would remove the other guns from the residence.

However, shortly after defendant was released from prison, his father was

hospitalized and defendant lived alone in the residence for eleven months.

Defendant’s father died on June 27, 2004.

In January 2004 Riebschleger asked defendant whether his father’s gun had been

moved and defendant told him it was at his sister’s home in Virginia. Riebschleger

again asked defendant about the gun about a month later (in February 2004) and

defendant assured him “that it was with his sister in Virginia.” On September 17,

2004, Riebschleger again asked defendant about the gun and that defendant “told

[Riebschleger] in a very clear, no nonsense manner that his sister, Vickie, had taken

control of the weapon in Virginia.” Also on that day, defendant asked Riebschleger

about being a bounty hunter and Riebschleger told defendant that he could not be a

bounty hunter. Riebschleger said that defendant “wanted to debate about it” and

asked if he could just assist a bounty hunter and that Riebschleger told defendant to

“play it safe” and that it was “just simply not a good idea” because a “lot of the

standard conditions of parole would have been in conflict with working as a bounty

hunter.”

On September 28, 2004, defendant reported to Riebschleger as scheduled, and

Riebschleger decided to give defendant a drug test. Defendant failed the drug test

and Riebschleger decided that defendant was “going to serve an eight day sanction

at the Buena Vista Corrections Center.” Riebschleger told defendant to secure his

money and jewelry in his van before serving his sanction. This was routinely done

without a problem, but in this case, defendant “ended up leaving.”

Once Riebschleger was aware that defendant had left the facility, he called him and

“instructed him to report back to the center immediately.” Defendant replied that “he

had an obligation to take care of, he had to do some things at the house, personal

business to take care of.” Defendant returned to the center after being gone “at least

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an hour.” When defendant returned, he was “processed into the center” which

included taking an inventory of his belongings and doing “a strip search to make sure

[defendant did not bring] . . . in any contraband.”

While defendant was being processed, defendant began to “struggle with the

corrections officer.” Riebschleger “quickly ran down there” and grabbed

defendant’s left hand where he “immediately noticed that [defendant] had contraband

in his hand,” including a “small roach type cigarette” and “full rolled cigarettes.”

Riebschleger and the corrections officer gave defendant “repeated orders to drop the

contraband, to drop that little roach cigarette . . . which was about half an inch long.”

Riebschleger said that as they “started the process of taking [defendant] to the

ground, [defendant] struck” the corrections officer “in the eye.”

While defendant was on the ground, Riebschleger “noticed that [defendant] was . . .

licking up the contraband, that small roach cigarette.” Riebschleger later told his

supervisor that defendant “had possibly just snuck in drugs” but that they would

“never know because [defendant] swallowed the evidence.”

Riebschleger indicated that defendant’s behavior led to a search of defendant’s van

“to make sure there was no other contraband.” Inside the van was an owner’s

manual to a pistol, an unopened bottle of Corona’s beer, bounty hunter’s credentials

and defendant’s father’s sheriff’s hat. Riebschleger indicated that the items in the

van led Riebschleger and his supervisor to conclude that defendant was not being

truthful about the gun and so they decided to search defendant’s residence.

Riebschleger’s supervisor unlocked the house and watched the search.

MDOC agents found drugs “hidden in the kitchen above the cupboard,” “the loaded

pistol hidden in a fake plant above a china cabinet in the living room,” “more

sheriff’s equipment, a training manuals [sic], collapsible baton, items from a uniform

from the sheriff’s department, and . . . clothing . . . that’s identified as fugitive

recovery agent clothing.” Vickie, defendant’s sister, called Riebschleger in

November 2004 and told him that defendant had lied to her about where the gun was,

telling her “that a brother apparently had the weapon.”

People v. Hoard, No. 267245, 2008 WL 274874, *1-2 (Mich. Ct. App. Jan. 31, 2008).

The court of appeals’s summary is erroneous on one minor point. The testimony actually

established that Riebschleger’s supervisor was consulted before the search but was not present

during the actual search. The house was unlocked and the search watched by petitioner’s “boss,”

or supervisor, Cam Christopher.

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Upon conviction, the petitioner was sentenced to concurrent prison terms of terms of three

years, ten months to 15 years and four to 25 years, and a consecutive term of five years for the

felony firearm conviction. He then filed a direct appeal.

The petitioner’s appellate counsel filed a brief challenging the denial of the motion to

suppress evidence, alleging ineffective assistance of counsel and arguing that the state sentencing

guidelines were scored improperly. The petitioner filed a pro se brief raising six more issues,

including the denial of his constitutional right to present a defense, omission of a lesser included

offense jury instruction, insufficiency of evidence of firearm possession, an additional sentencing

error, prosecutorial misconduct, and another instance of ineffective assistance of counsel. The court

of appeals affirmed the petitioner’s convictions and sentences on January 31, 2008. People v.

Hoard, No. 267245, 2008 WL 274874 (Mich. Ct. App. Jan. 31, 2008). The petitioner attempted to

file an application for leave to appeal in the Michigan Supreme Court, but it was rejected as

untimely, having been received on March 31, 2008. The petitioner filed a motion for

reconsideration in the supreme court, stating that he mailed the application for leave to appeal on

March 28, 2008, and that it was timely because it was mailed within 56 days of the date his attorney

mailed the court of appeals’s decision to him. However, the supreme court clerk rejected the motion

in a letter dated April 22, 2008, explaining that the time to file the leave application had lapsed on

March 27, 2008 and therefore the clerk was barred by Michigan Court Rule 7.306(B) from receiving

a motion to file a late application for leave to appeal.

The petitioner timely filed his federal habeas petition in this Court. The petition raises four

claims for relief:

I. Petitioner’s Fourth Amendment right to be free from unreasonable searches

and seizures was violated by the warrantless search of his home not being in

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compliance with the governing administrative rule and the fruits of the search

were not suppressed.

II. Petitioner’s Fifth, Sixth, and Fourteenth Amendment equal protection and

due process rights to present a defense were violated by the trial court

denying defense witnesses and evidence.

III. Petitioner’s Sixth Amendment right to have effective assistance of counsel

was violated by his attorney’s conduct being outside the wide range of

professionally competent assistance set forth in the Strickland standard.

IV. Petitioner’s Fourteenth Amendment right to have a fair and impartial trial

was violated by the obvious trial errors and the prosecutor’s categorically

improper conduct.

Pet. at 16, 24, 34, 41. Each of these claims was raised in the petitioner’s direct appeal.

The respondent filed an answer to the petition, arguing that this Court should not hear the

merits of the petition because the petitioner failed to complete the direct appeal process when his

application for leave to appeal was rejected as untimely by the Michigan Supreme Court. However,

“federal courts are not required to address a procedural-default issue before deciding against the

petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v.

Singletary, 520 U.S. 518, 525 (1997)). Although a procedural bar may preclude relief, “[j]udicial

economy might counsel giving the [other] question priority, for example, if it were easily resolvable

against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state

law.” Lambrix, 520 U.S. at 525. In this case, the Court finds that the interests of judicial economy

are best served by addressing the merits of the petitioner’s claims.

II.

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The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.

L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” the

standard of review federal courts must apply when considering an application for a writ of habeas

corpus raising constitutional claims, including claims of ineffective assistance of counsel. See

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. . . .

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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

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 (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 federal habeas relief

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

at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Sixth Circuit observed

recently that “[t]his is a very high standard, which the [Supreme] Court freely acknowledges.” Peak

v. Webb, --- F.3d ---, ---, 2012 WL 833179, at *5 (6th Cir. Mar. 14, 2012). The court suggested that

Richter holds that the review standard “is even more constricted than AEDPA’s plain language

already suggests.” Ibid. 

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.

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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 (2010) (finding that the state court’s 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)); see also Peak, 2012 WL 833179, at *5; Bray v. Andrews,

640 F.3d 731, 737-39 (6th Cir. 2011); Phillips v. Bradshaw, 607 F.3d 199, 205 (6th Cir. 2010);

Murphy v. Ohio, 551 F.3d 485, 493-94 (6th Cir. 2009); Eady v. Morgan, 515 F.3d 587, 594-95 (6th

Cir. 2008); Davis v. Coyle, 475 F.3d 761, 766-67 (6th Cir. 2007); King v. Bobby, 433 F.3d 483, 489

(6th Cir. 2006); Rockwell v. Yukins, 341 F.3d 507, 511 (6th Cir. 2003) (en banc). Moreover, habeas

review is “limited to the record that was before the state court.” Cullen v. Pinholster, --- U.S. ---,

131 S. Ct. 1388, 1398 (2011). 

A.

The petitioner first argues that his Fourth Amendment right to be free from unreasonable

searches and seizures was violated by the admission of evidence seized in the warrantless search of

his home.

The respondent argues that this claim is not cognizable on habeas review. The Court agrees.

The Supreme Court has held that “where the State has provided an opportunity for full and fair

litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus

relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced

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at trial.” Stone v. Powell, 428 U.S. 465, 494-95 (1976). The Sixth Circuit employs a two-step

analysis to determine whether a defendant was given a full and fair opportunity to litigate a Fourth

Amendment claim in state court:

First, the court must determine whether the state procedural mechanism, in the

abstract, presents the opportunity to raise a fourth amendment claim. Second, the

court must determine whether presentation of the claim was in fact frustrated because

of a failure of that mechanism.

Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (internal quotation marks omitted).

Michigan provides ample opportunity for litigation of Fourth Amendment claims. Typically,

such claims are addressed before trial by means of a motion to suppress filed before trial. See

People v. Ferguson, 376 Mich. 90, 93-94, 135 N.W.2d 357, 358-59 (1965) (holding that motions

to suppress must be brought timely where the factual circumstances constituting the illegal arrest

or seizure are known to the defendant in advance of trial). However, even absent objections in the

trial court, Michigan appellate courts entertain Fourth Amendment claims where it appears that the

evidence in question affected the outcome of the trial. People v. Harris, 95 Mich. App. 507, 509-10,

291 N.W.2d 97, 99 (1980).

In this case, the petitioner’s Fourth Amendment claim was the subject of a suppression

hearing in state court. The petitioner’s attorney filed a pretrial motion; the trial court did not conduct

a separate evidentiary hearing, instead relying on the evidence from the preliminary examination.

The trial court denied the motion to suppress, and after trial the petitioner appealed his conviction

to the Michigan Court of Appeals, where he again presented his Fourth Amendment claim. The

Michigan Court of Appeals addressed the claim and found no Fourth Amendment violation. Hoard,

2008 WL 274874, at *2-4. 

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The petitioner received full and fair consideration of his Fourth Amendment claims in the

state courts, and there is no evidence that presentation of the claim was frustrated by a failure of

procedural mechanisms. Therefore, habeas review is unavailable for the petitioner’s Fourth

Amendment claim.

B.

The petitioner next contends that he is entitled to a new trial because his Fifth, Sixth, and

Fourteenth Amendment rights to present a defense were violated by the trial court’s refusal to hear

his evidence and defense witnesses. He contends that he was prevented from presenting evidence

at trial that Department of Corrections employees induced him to violate the firearms statute.

The Supreme Court has interpreted the due process clause “to require that criminal

defendants be afforded a meaningful opportunity to present a complete defense.” California v.

Trombetta, 467 U.S. 479, 485 (1984). In general, states have broad leeway to decide what relevant

evidence a defendant may present in a state criminal trial. See Montana v. Egelhoff, 518 U.S. 37, 42-

43 (1996). There are, however, a few customs and principles “so rooted in the traditions and

conscience of our people as to be ranked as fundamental,” and it is constitutional error to limit a

defendant’s right to present evidence where such exclusion would offend traditional principles of

justice. Engelhoff, 518 U.S. at 43 (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)).

The petitioner asserts that he was denied the opportunity to assert the defense of entrapment

by estoppel and to file a witness list in support of that defense. The defense of entrapment by

estoppel, as recognized by Michigan law, has the following elements:

[T]he entrapment by estoppel defense applies where the defendant establishes by a

preponderance of the evidence that (1) a government official (2) told the defendant

that certain criminal conduct was legal, (3) the defendant actually relied on the

government official’s statements, (4) and the defendant’s reliance was in good faith

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and reasonable in light of the identity of the government official, the point of law

represented, and the substance of the official’s statement.

 People v. Woods, 241 Mich. App. 545, 558, 616 N.W.2d 211, 217 (2000) (quoting United States

v. West Indies Transport, Inc., 127 F.3d 299, 313 (3d Cir. 1997)).

The trial court refused to permit the petitioner to offer witnesses in support of the defense

of entrapment by estoppel because the petitioner did not submit his witness list until the trial had

already begun. The exclusion of the petitioner’s witness list because it was not given to the court

in advance of trial does not offend fundamental principles of justice. The Supreme Court has never

held that requiring witness lists in advance of trial violates a criminal defendant’s fundamental

rights. On the contrary, the Court has upheld procedural rules that prevent a defendant from offering

evidence or testimony when he has not complied with state procedures. See Williams v. Florida,

399 U.S. 78, 81-86 (1970) (upholding constitutionality of Florida’s notice of alibi rules); Michigan

v. Lucas, 500 U.S. 145, 151-53 (1991) (rejecting per se rule prohibiting exclusion of evidence of

defendant’s past sexual conduct with victim where defendant filed to comply with notice and

hearing requirements of Michigan’s rape shield law). The Michigan courts’ holdings denying relief

on this aspect of petitioner’s claim does not unreasonably apply those precedents.

The petitioner also asserts that his due process rights were violated by the failure of the court

to permit him to assert a defense of entrapment by estoppel. 

In federal criminal trials, a defendant is entitled to an entrapment instruction “whenever there

is sufficient evidence from which a reasonable jury could find entrapment.” Mathews v. United

States, 485 U.S. 58, 62 (1988). The Supreme Court, however, has never held that this right to

present an entrapment defense is fundamental or grounded in the United States Constitution. See

id. (citing United States v. Russell, 411 U.S. 423, 433 (1973)).

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Even if an entrapment defense were deemed fundamental, the petitioner would not be entitled

to habeas relief because the Michigan court held that there was insufficient evidence under Michigan

law for a jury to find entrapment by estoppel. This Court is bound by the state court’s construction

of its own law on the question of the required elements of the defense. See Bradshaw v. Richey, 546

U.S. 74, 76 (2005) (“We have repeatedly held that a state court’s interpretation of state law,

including one announced on direct appeal of the challenged conviction, binds a federal court sitting

in habeas corpus” (citations omitted)). The requirement of a threshold showing is consistent with

due process. See Taylor v. Withrow, 288 F.3d 846, 853 (6th Cir. 2002) (holding that the petitioner

not entitled to instruction on self defense where state court held that the evidence was insufficient

to sustain defense under state law); cf. United States v. Bailey, 444 U.S. 394, 415-16 (1980)

(upholding trial court’s refusal to instruct on affirmative defenses of duress and necessity where

defendants failed to introduce sufficient evidence to submit defenses to jury). 

Under Michigan law, an entrapment defense must be raised by pretrial motion, and, once

raised, the court then conducts a hearing at which the defendant bears the burden of proof. See

People v. D’Angelo, 401 Mich. 167, 183, 257 N.W.2d 655, 662-63 (1977); People v. Pierce, 272

Mich. App 394, 400, 725 N.W.2d 691, 695 (2006). The petitioner never filed such a motion. The

Michigan Court of Appeals found that the petitioner was not deprived of his right to present a

defense because the evidence that he sought to introduce did not support his theory of entrapment

by estoppel as a matter of Michigan law. The record supports that holding. The petitioner admitted

at trial that Riebschleger told him that he was not allowed to possess or be around weapons, but he

denied being in “possession” of the gun found at his house. 

Defendant never asserted an entrapment defense at trial, and there was no need for

the trial court to hold an evidentiary hearing. Further, there is no evidence that

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anyone told defendant he could reside in a house where he could access a gun. To

the contrary, the record indicates that defendant was told repeatedly that he was not

to have access to that gun. Further, after defendant’s father died, he was asked

repeatedly if the gun had been removed because defendant was not allowed to keep

it. Therefore defendant, who has the burden of proof, has failed to demonstrate the

elements of an entrapment defense.

Defendant’s witness list was denied because he gave it to the court on the day trial

began. At that time, the trial court pointed out that it had given defendant the

deadlines almost a year prior, so there was no excuse for defendant filing the witness

list late. Under these circumstances, no abuse of discretion is established.

Hoard, 2008 WL 274874, at *8.

The court of appeals’s holding does not amount to an unreasonable interpretation of the facts,

and it appears to apply state law faithfully. The conclusion that the petitioner was not deprived of

his federally protected right to present a defense is not contrary to or an unreasonable application

of federal law. The petitioner is therefore not entitled to relief on this claim.

C.

The petitioner argues next that he was deprived of his Sixth Amendment right to effective

assistance of trial counsel.

The two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984), governs

the Court’s analysis of ineffective-assistance-of-counsel claims. Towns v. Smith, 395 F.3d 251, 258

(6th Cir. 2005). “To establish ineffective assistance of counsel ‘a defendant must show both

deficient performance by counsel and prejudice.’” Premo v. Moore, --- U.S. ---, ---, 131 S. Ct. 733,

739 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). 

Because of the high deference accorded state court determinations by AEDPA, establishing

that counsel was ineffective and, therefore, the petitioner was denied his right to counsel under the

Sixth Amendment is difficult. The Supreme Court explained recently:

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“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559

U.S. ---, ---, 130 S. Ct. 1473, 1485 (2010). . . . The question is whether an attorney’s

representation amounted to incompetence under “prevailing professional norms,” not

whether it deviated from best practices or most common custom. Strickland, 466

U.S. at 690.

Establishing that a state court’s application of Strickland was unreasonable under

§ 2254(d) is all the more difficult. The standards created by Strickland and

§ 2254(d) are both “highly deferential,” id., at 689; Lindh v. Murphy, 521 U.S. 320,

333, n.7 (1997), and when the two apply in tandem, review is “doubly” so, Knowles,

556 U.S., at ---, 129 S. Ct. at 1420. The Strickland standard is a general one, so the

range of reasonable applications is substantial. 556 U.S., at ---, 129 S. Ct. at 1420.

Federal habeas courts must guard against the danger of equating unreasonableness

under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies,

the question is not whether counsel’s actions were reasonable. The question is

whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.

Harrington v. Richter, 131 S. Ct. at 788.

On habeas review, “[t]he question ‘is not whether a federal court believes the state court’s

determination’ under the Strickland standard ‘was incorrect but whether that determination was

unreasonable — a substantially higher threshold.’” Knowles, 556 U.S. at 123 (quoting Schriro v.

Landrigan, 550 U.S. 465, 473 (2007)). Moreover, “because the Strickland standard is a general

standard, a state court has even more latitude to reasonably determine that a defendant has not

satisfied that standard.” Ibid. (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

The petitioner first argues that his counsel was ineffective because he refused to present a

defense of entrapment by estoppel and to file a witness list in support of that defense. The Michigan

Court of Appeals rejected this claim because the facts adduced at trial did not support it, and all the

facts that might have impacted the defense already were before the jury. That court explained:

It is true that defendant was given permission to live in a home that contained a gun

owned by his father. However, that permission was premised on the father’s promise

to keep the gun locked up and away from defendant. Once defendant’s father died,

it is clear that Riebschleger wanted the gun removed. According to Riebschleger,

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he repeatedly received assurances from defendant that the gun had been removed (by

defendant’s sister). Defendant denied this. Defendant also testified that the

authorities had not come to his home to confiscate the gun after his father’s death.

Thus, the dispute underlying a claim that he was entrapped was presented to the jury.

Defendant fails to show that he was denied effective assistance on this basis.

Hoard, 2008 WL 274874, at *5.

The state court’s construction of the facts is not unreasonable. The record certainly supports

it. The ruling can be read as a finding that no deficient performance occurred because counsel could

not be expected to advance an unsupported defense. See Norris v. Schotten, 146 F.3d 314, 336 (6th

Cir. 1998). Or it could be interpreted to mean that no prejudice occurred because the jury heard all

the facts that counsel could have offered and concluded that the petitioner was guilty. Either way,

the state court’s decision withstands the generous review standard that applies in federal habeas

proceedings. The court of appeals’s rationale amounts to a “reasonable argument that counsel

satisfied Strickland’s deferential standard.” Richter, 131 S. Ct. at 788. Prejudice is established by

“showing that counsel’s errors were so serious as to deprive the defendant of a fair trial.”

Strickland, 466 U.S. at 687. He must show that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at

694. The state appellate court evaluated the strength of the state’s case and concluded that the

defendant would have been convicted even if defense counsel had advanced the entrapment by

estoppel defense.

The petitioner also argues that his trial counsel was ineffective because he failed to challenge

under state law the admission of evidence obtained in the warrantless search of the petitioner’s

house. The Michigan Court of Appeals held that petitioner’s trial counsel was not deficient by

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failing to oppose that evidence because the search was proper under Michigan law when it occurred.

Once again, the Michigan court’s interpretation of state law concerning the search of parolees is

binding on this Court. Bradshaw, 546 U.S. at 76. And such a search would not offend the Fourth

Amendment. See Samson v. California, 547 U.S. 843, 857 (2006); United States v. Smith, 526 F.3d

306, 308-09 (6th Cir. 2008). Because an attorney does not perform deficiently if he fails to advance

a meritless argument, Norris, 146 F.3d at 336, the Michigan court’s holding was not an unreasonable

application of Strickland.

The petitioner also asserts that his counsel was ineffective because he failed to interpose a

relevancy objection to the admission of testimony about fugitive recovery materials and sheriff’s

department property found in the petitioner’s van and house. The Michigan Court of Appeals

rejected this argument, finding that the evidence was relevant because it corroborated Riebschleger’s

belief that the petitioner had retained possession of his father’s gun. The court also determined that

there was direct evidence in the record on the point, so any objection by trial counsel would have

been futile. The Court cannot conclude those determinations misapplied Strickland. Defense

counsel engages in sound trial strategy by foregoing frivolous objections. Moreover, the evidence

challenged here by the petitioner was relevant to explain Riebschleger’s conduct.

The petitioner also argues that his trial counsel was ineffective for failing to object to two

hearsay statements admitted through Riebschleger’s testimony. The first was that the petitioner’s

father told Riebschleger that he would keep his service gun in a safe; the second was that the

petitioner’s sister Vickie had told Riebschleger that the petitioner had lied to her about the location

of the gun. The Michigan Court of Appeals rejected the argument, finding that the statements were

not inadmissible hearsay because they could have been offered for the purpose of state of mind or

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impeachment and the petitioner’s attorney could have made his decision based on trial strategy. The

Michigan court also found that the petitioner failed to show that he was prejudiced by the admission

of the statements because of overwhelming evidence of guilt. 

That holding did not unreasonably apply Strickland. The state court’s evidentiary rationale

was plausible. And the Supreme Court requires “a heavy measure of deference” to counsel’s

strategic decisions. Strickland, 466 U.S. at 691; see also Brown v. Smith, 551 F.3d 424, 430 (6th

Cir. 2008). This Court also agrees that evidence of the petitioner’s guilt of the felon in possession

charge was overwhelming.

Finally, the petitioner contends that he was deprived of the effective assistance of counsel

because his trial lawyer failed to file an interlocutory appeal of the trial court’s orders denying his

motion to suppress evidence and for release on bail for violation of his right to a speedy trial. The

petitioner raised this claim before the Michigan Court of Appeals, which denied it on the grounds

that the petitioner had not shown how an interlocutory appeal would have been different than an

appeal of the same issues after trial. See Hoard, 2008 WL 274874, at *4-6. That court’s conclusion

that no prejudice ensued reasonably applies Strickland.

The petitioner has failed to show that he was denied the effective assistance of trial counsel.

He is not entitled to habeas relief on his third claim.

D.

Finally, the petitioner argues that his right to a fair trial was violated by trial court errors and

prosecutorial misconduct. He argues that the prosecutor committed misconduct by introducing

evidence obtained from the warrantless search of petitioner’s house, by prosecuting him for

possessing a weapon that he claims his parole agent permitted him to possess, by asking petitioner

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to opine on the testimony of other witnesses, and by making statements not supported by any

evidence. 

Prosecutorial misconduct will form the basis for habeas relief only if the conduct was so

egregious that it rendered the trial fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974). Claims of prosecutorial misconduct are reviewed deferentially on habeas review.

Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344 F.3d 487, 512

(6th Cir. 2003)). The standard of review of a prosecutorial misconduct claim “is ‘the narrow one

of due process, and not the broad exercise of supervisory power.’” Darden v. Wainwright, 477 U.S.

168, 181 (1986) (quoting Donnelly, 416 U.S. at 642). A claim of prosecutorial misconduct is only

cognizable on habeas review if the misconduct “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Bowling, 344 U.S. at 512 (internal quotation marks

omitted). The determination whether the trial was fundamentally unfair is “made by evaluating the

totality of the circumstances surrounding each individual case.” Angel v. Overberg, 682 F.2d 605,

608 (6th Cir. 1982). The Court must focus on “‘the fairness of the trial, not the culpability of the

prosecutor.’” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (quoting Serra v. Mich. Dep’t

of Corr., 4 F.3d 1348, 1355 (6th Cir. 1993) (other citations omitted)). Finally, “[t]he Supreme Court

has clearly indicated that the state courts have substantial breathing room when considering

prosecutorial misconduct claims because ‘constitutional line drawing [in prosecutorial misconduct

cases] is necessarily imprecise.’” Slagle v. Bagley, 457 F.3d 501, 516 (6th Cir.2006) (quoting

Donnelly, 416 U.S. at 645).

This circuit applies a two-pronged test to determine whether a state court reasonably applied

federal law in holding prosecutorial misconduct did not render a petitioner’s trial fundamentally

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unfair. Slagle, 457 F.3d at 515. The court must first determine if the conduct was improper. Id. at

516. If the answer to the first question is yes, the court must then decide if the improper conduct

was sufficiently flagrant to warrant reversal. Id. Four factors are to be considered in deciding if the

improper acts or statements were sufficiently flagrant to warrant reversal: (1) the strength of the

evidence against the defendant, (2) whether the conduct of the prosecution tended to mislead the jury

or prejudice the defendant; (3) whether the conduct or remarks were isolated or extensive; and (4)

whether the remarks or conduct were deliberate or accidental. Ibid.

The prosecutor committed no misconduct by prosecuting the petitioner on firearms charges.

After all, the evidence established that he was guilty of the charge. The petitioner did not dispute

that he was a felon, and he did not dispute seriously that the authorities found a firearm in the house

in which he was living alone. The crux of the petitioner’s defense appeared to be that he did not

“possess” the gun that his father had left in the house or, alternatively, that he was led by

government officials to believe that he could live in the house legally with the gun despite his

father’s death. There was nothing improper about the prosecution of those charges.

The petitioner asserts that the prosecutor improperly introduced and commented on hearsay

evidence. That evidence was admitted without objection from the defense. A prosecutor is free to

argue that the jury should arrive at a particular conclusion based upon the record evidence. 

Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir. 1999), overruled on other grounds by Lindh v.

Murphy, 521 U.S. 320 (1997). The admission and discussion of hearsay statements do not constitute

prosecutorial misconduct.

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The petitioner also asserts that the prosecutor improperly asked the petitioner to opine on the

veracity of Riebschleger’s testimony. At the end of cross-examination, the prosecutor asked the

petitioner the following:

Q. This agent has testified that on at least three occasions you very specifically

told him to his direct questioning that your father’s service firearm, the gun

that’s sitting there in that — in one of those bags, had been removed by your

sister. Are you saying that he is lying?

A. I did not tell him that.

Trial Tr., Sept. 15, 2005 at 183. And on recross-examination:

Q Sir, you’ve mentioned your sister Vickie again. Why exactly would it be that

she would lie and say that you told her that you’d given the gun to another

relative?

A I don’t know that she said that, sir. I was not present.

Q Okay. So you don’t think she would have any reason to lie; isn’t that true?

A. I don’t know if she said anything. I don’t know if she’s even been in contact with

him. I’ve been incarcerated for the last year.

Q. So you’re saying you don’t know if she would lie or she wouldn’t lie?

A. I don’t know if she even had a statement made, sir, I can’t say — 

Q. Thank you.

A. — one way or another.

Q. In the end, it’s your credibility versus this person’s credibility, correct, and the

evidence we have, right?

A. It’s on the truth, sir, the whole truth.

Id. at 188-89.

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That line of questioning likely was improper. Under Michigan law, a cross-examiner may

not ask a witness to comment on the credibility of other witnesses; credibility determinations are the

province of the jury. People v. Buckey, 424 Mich. 1, 17, 378 N.W.2d 432, 440 (1985). 

The petitioner also asserts that the prosecutor committed misconduct in his closing statement

by stating that the evidence showed that there was a lockbox in the house and that the petitioner’s

father had agreed to store the gun in the lockbox. The petitioner argues that Riebschleger testified

that the gun was to be stored in a safe, not a lockbox, and no safe was found on the premises. The

petitioner argues that the prosecutor also committed misconduct by claiming in his opening

statement that the petitioner left the corrections center for two to three hours, when the testimony

from Riebschleger indicated that it was “at least an hour.” The petitioner also asserts that the

prosecutor committed misconduct by stating that the fugitive recovery agent identification found in

the petitioner’s van was false or fraudulent. Finally, the petitioner argues that the prosecutor

committed misconduct by suggesting in closing argument that the petitioner “abuse[d] . . . his

father’s memory” by bringing cocaine and marijuana into his father’s house after his death. That

statement is improper because it invites the jury to convict based on factors irrelevant to guilt.

Even if these statements were improper, the prosecutor’s conduct was not sufficiently

flagrant to require relief. As mentioned, the strength of the evidence against the defendant was

substantial. The Court cannot find from the record that the prosecutor intended to mislead the jury.

Many of the statements muffed the facts, but they were reasonably close to the actual testimony.

The remarks, for the most part, were isolated. And it does not appear that the prosecutor’s

transgressions, such as they were, were intentional. Moreover, prosecutorial misconduct will form

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the basis for habeas relief only if the conduct was so egregious that it rendered the trial

fundamentally unfair. Donnelly, 416 U.S. at 643-45. The prosecutor’s conduct did not render the

petitioner’s trial fundamentally unfair. 

The Michigan court did not unreasonably apply federal law in rejecting the petitioner’s claim

of prosecutorial misconduct. The petitioner is not entitled to habeas relief on this claim.

III.

The state courts’ decisions in this case were not contrary to federal law, did not

unreasonably apply federal law, and did not amount to an unreasonable determination of the facts.

The 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.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: March 22, 2012

PROOF OF SERVICE

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

upon each attorney or party of record herein by electronic means or first

class U.S. mail on March 22, 2012.

s/Deborah R. Tofil 

DEBORAH R. TOFIL

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